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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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Q: Ed, do you have any fresh ideas about how I can market my law business?
A: There is no better way to establish effective prospect relationships than by establishing a presence for your firm or your practice at industry trade shows and association meetings. By properly researching and targeting your audience, you can meet more prospects in one day than you might otherwise meet in months. And by physically being present at these meetings of potential clients, you demonstrate that you know their business, understand their concerns, and are serious about offering solutions.
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American Bar Journal includes LawBizBlog in top 100!
Ed Poll finds plenty to post about from his speaking schedule alone. He writes about outsourcing and the cold-hard-cash facts of starting—or ending—a law practice.
Go to the Journal and vote for LawBizBlog.com!
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Cyber Monday is here .. indications that sales will be ahead of last year by 15% to 20% on line! Buyers are shopping at the physical stores and then going on-line to seek better prices. Boot up and go shopping! When times get tough, the tough go shopping … <g>
Yesterday, I bought a great camera, a new model from a high quality brand. I couldn’t believe the difference in the pricing between what I saw in the store and the price of a reputable on-line operation (which, by the way, has a physical store in New York). And my wife says she will buy everything on-line this year in order to avoid the long lines and surly service in stores.
Is there an ethical issue in this circumstance? What are the ethics of using the service of a store, determining what you want, and then buying on-line because of a price differential? Is there any difference between this circumstance and comparing pricing among various stores?
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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 an article in the September 2007 edition of Law Firm Inc., e-billing is discussed. Here are some of the primary points made in the article:
Pro
• Find errors and charges that aren’t in keeping with the client’s billing standards
• Compares costs among various outside law firms
• Saves 15 – 18% of its outside legal costs in some instances
• Reduces workload in reviewing and approval process
• Increase payment by 30 days to the law firm
• Faster pay increases profit for the law firm
Con
• Increased cost connected with e-billing
• Usually have to hire a dedicated person/staff to deal with the e-billing detail
• Places small firms at a competitive disadvantage because they generally can’t afford the cost of the software, the learning curve and the additional staff required to handle the process
• On-going software maintenance fees
• Additional fee for each additional custom billing template needed for a new client
• Added accounting requirements
• Steep learning curve for attorneys to learn different billing codes for each client
• Increased possibility/likelihood of billing errors because of lack of uniformity in codes
• Rejection of total billing invoice when there is a human error on one element – invoice is returned for correction
• Notification of error is seldom complete and law firm is expected to know what the error is; if this is not the case, the process becomes process, return, fix, return, reject, etc., until it is finally determined what the error is and it’s fixed.
The article concludes that, at the moment, e-billing today is not likely to benefit law firms, though it may in the future; but it clearly is an added cost of doing business.
Thus, whether it’s a blessing or a burden depends on which side of the table this discussion finds you.
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