Tag Archive: Thoughts

Ageism Is Not the Answer for the Legal Profession

For the 2013 academic year, law school admissions were headed for a 30-year low, a decline driven by student worries about rising tuition, debt load and unemployment after graduation. Potential law students increasingly understand that today it is a fool’s gamble to spend many thousands of dollars in the hope of getting a well-paying job at the end of three years, and as they pursue other careers the legal profession will shrink.

Demographics present another way to reduce the supply of lawyers. There are more than 1.2 million lawyers in the United States, at least half of them sole practitioners and some 400,000 poised to retire by the year 2020. To suggest that this latter group should be treated differently from any other group in the organized bar would create allegations of ageism and prohibited discrimination. However, a metric that is applicable to all lawyers, such as “competence in professional skills,” is safer ground. Of course, if this metric also achieves the basic goal of reducing the number of lawyers, by implying that older lawyers are less competent to serve clients, so much the better.

The problem with this metric is that it is never applied uniformly. If we look at new lawyers, those who have been admitted to practice for three years or less, there will undoubtedly be many who are not “competent,” despite the fact that they have passed the bar exam. What is the competence metric for “older” lawyers? Do they have to pass another bar exam? If yes why should age be the factor that determines whether they have to take a new examination? If not, what might it be? There is no examination at anywhere in the time spectrum of a lawyer’s career that requires such an examination.

It is the rare lawyer who has not thought at some point, “My opponent is not very good.”  Often this is another way of saying, “My opponent doesn’t seem very competent.” This is impressionistic only, but to be valid it must be applied throughout the entire career life cycle.

It is not accurate to automatically assume that older lawyers are more careless, have too many distractions and make too many errors leading to discipline.  Young lawyers are closer to the teaching of the rules of professional conduct than are the older lawyers. But, that does not assure that all younger lawyers are competent to offer the advice they’re asked for … and, with MCLE, older lawyers generally keep their skills up. Regardless of lawyers’ ages, the majority of the complaints against the profession relate to careless dealings with clients… Age is not a determining factor in such a scenario.


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Language is Everything

For growth and expansion, there are two philosophies:

               Trail your growth (conservative), or

               Hire for the future (confident and assertive)

For troubled times, there are two philosophies:

               Slow to hire

               Quick to fire

 Lawyers should do only two things:

               Market for new business:

                              Only they know if they want to represent the prospect

                              Only they know if they’re competent to handle the matter


                              Only the lawyer is licensed by the state to practice

All else can and should be handled by others

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Public Justice versus Private Judges

Justice should be free. However, the State of California has just cut the budget of its court system by more than $500 million!  Litigants will be left to fend for themselves.  One blogger suggests that private judges are not expensive when comparing the speed of justice in a private matter with the delays and increased costs of the public judicial system. 

In the 1960s and 1970s, the State of California began changes to its pension system, which culminated in a major change in 1994.  Judges elected or appointed before that year could with qualifications retire as early as age 60 at 75% of salary, but if they stayed on the bench after age 65 the percentage went down.  Judges who assumed their jobs after 1994 got a further reduction. Many of these judges found it more advantageous to retire and hire themselves out as private judges. Thus began the two-tier system of justice, one for the rich who could afford to move quickly with a private judge, and the other for everyone else.

The recent budget cut further exacerbates the problem by giving incentives to even more people (who can afford it) to enter into the private judging world … a boon for them and a catastrophe for the average citizen with an average matter who can’t afford the added expenses of a private judge.

Our Constitution says everyone is entitled to right to counsel. In at least one instance, this applies to civil matters as well as criminal matters. Shouldn’t this right also include that everyone is entitled to the right to be judged by a competent and objective individual, paid by the state?  Private judging sounds too much like the old vigilante justice.  Am I unfair when I ask whether these judges will be influenced by which lawyers use their services more? If this is a question raised in my mind, I wonder what the litigants might wonder …. And that is not how justice ought to be delivered or viewed. 

As a postscript, there are already those who predict that the national system of health care under the now-validated Affordable Care Act will lead certain physicians to opt out of the system and care only for wealthy individuals who can afford them.  Would such doctors refuse to see or treat a patient who could not demonstrate the required level of net worth? 

Lincoln famously observed that a house divided against itself cannot stand. Ultimately the same can be said about a society divided against itself, between those who can pay and those who can’t.

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Holiday cards – To do or not to do, that is the question

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.

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Is Coaching for You

If you haven’t already, I suggest reading “Personal Best” by Atul Gawande on newyorker.com. Dr. Gawande examines the need for and nature of coaching for professionals of all walks of life.

Musicians and singers, he points out, think of their coaches as “outside eyes and ears”. They hear and see things that even the best performers can’t detect about their own performances. In endurance coaching, anyone can design hard workouts. Anyone can make you tired and push you into the darkness. In coaching lawyers, anyone can tell you what to do even if it is beyond your comfort zone.

But a good coach will help you understand where you want to go, devise a plan that is within your comfort zone and that will get you there, and then be your mentor and accountability partner to assure your success.

Who is your coach? Is it your colleague, your spouse or significant other or a professional whose career is devoted to helping others like you to succeed? Whomever it may be, we all succeed sooner and stay on top longer when we have a coach, our "outside eyes and ears."

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Groundhog Day, Customer Service and Lawyers, Customer Service – The Differentiator

Have you ever had problems traveling, making connections or finding that weather is a great excuse to be surly to those you serve? If you’ve ever experienced any of these, or a myriad of other issues facing us when we travel, check out my latest commentary on having been stranded in Manhattan, trying to get home from JFK. While bad weather is a legitimate catalyst for scrambling (as in Chicago), just remember that you’re in the business and know these things happen. Be prepared with a good attitude – your customers need all the help and pleasantness they can get.

Thus, as lawyers, you know that your clients will always be in stress. Make sure that you and your staff are pleasant. It will make the relationship go more smoothly … oh, and yes, they will be far more willing to pay your bills timely! Heed this advice only if you understand that you are in The Business of Law®.

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Will the internet replace newspapers?

When you read the news, or when you thumb through a catalog, you are exposed to new ideas and suggestions you might not have thought about before. When you shop or read the news on the internet, you are focused on the one item or idea you started with. That is limiting.

Thus, there is a place for both.  For example, catalogs create need by suggesting items you weren’t thinking about; the Internet is better at fulfilling the need once it’s identified by allowing you to shop for lower prices and faster delivery.

Don’t throw away the baby with the bath water. Newspapers are important. The problem is that if too many people flee the use of the newspaper, they may not be able to pay their investigative reporters. Then, we’ll rely on citizen-reporters, a scary thought.

Likewise, use of the internet (social media, etc.) by law firms is only one tool in the marketing arsenal. It may reach more people; it may be less expensive (though I question this); and it may be faster to create. But, traditional methods of creating relationships and reaching your target market should not be abandoned.

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Loan modifications light on in California

The article by David Streitfeld is a good piece. He’s the housing reporter for the NY Times and spends most of his time in California. In response to an earlier piece by him on the subject, where he failed to mention California, I contacted him. He knew nothing about the law in California (since 2009) or the State Bar’s modification of its Rules of Professional Conduct that made it a crime to take money from clients in advance of completion of the loan modification, not even for deposit into a client’s trust account.

I told him about the new law and pointed him to several of my blog posts on this topic where he could learn more.

I’m glad that he’s written about it now, in more detail and highlighted California’s experience.

As a side note, an officer of Bank of America claims that of the Bank’s loan modifications, more than 70% go back into default within 2 years … a scary statistic. Should the Bank be responsible for maintaining a family in a home which it can’t afford, even with a modified loan structure? I’m not sure … Or, should the government offer some help. They have bailed out the big banks on Wall Street, how about some help for the people on Main Street? I’m not sure what is the right answer. It’s clear, however, that if no one helps, we’ll have many more foreclosures in 2011 and 2012. Our political spectrum is so polarized today that all we seem to hear is noise, white noise, and more noise.

BTW, it was a politician seeking headlines that started the ball rolling. And, it was the absence of lawyers in the legislature (only about 23% today) that permitted it. And, a non-lawyer governor who signed it. And, it seems, non-profit organizations who lobbied for it (a little competition there, would you say?). Who gets screwed? The people.

Too bad the State Bar president failed to support sole and small firm lawyers who worked in this area. Rather, he seemed hell bent on chastising the whole because of a few bad apples. Rather, the Bar and the District Attorney could have used the many rules (moral turpitude and others) and laws (Penal Code against theft) already on the books to protect the people scammed by lawyers without removing entirely the good lawyers from this process. Provisions on the books already protect against any lawyer taking money from a client under false pretenses (theft) and the rules of professional conduct protects against moral turpitude and for not performing work that was promised. The State Bar didn’t have to follow the urging of the bar president to support this effort.

The state bar president, at the very best, gives no more than lip service to solos … See my open letter.

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