Or so it seems to me. Lately, there has been a variety of articles proclaiming the death, or impending death, of the billable hour. So goes the argument: Billable hours misalign incentives between lawyers and their clients; law firms and lawyers have faced increasing pressure over recent years to redefine their business model and move away from the billable hour, at least in part; and in this economy clients have the motivation, the leverage, and the moxy to demand alternative billing arrangements from their lawyers.
In theory, this may be true, and perhaps large clients (as in those who spend enormous sums of money with their law firms on an annual basis) have put some of this theory into practice. But I’m not so convinced that the billable hour has earned its demise quite yet. For one thing I work as in house counsel at a Fortune 1000 company and I see very few alternative billing arrangements. (For another, I used to work at a big law firm that also saw few alternative billing arrangements.) That is due in part to our own taste for risk. After all, alternative billing arrangements must incentivize both parties, meaning the client may end up paying more for a given set of services than it otherwise would have under a billable hour system. Continue reading “Rumors of the Death of the Billable Hour Have Been Greatly Exaggerated”
At the start of each academic year, I cannot help but to think of Professor Kingsfield, the notorious contracts professor in The Paper Chase. The various classroom scenes where Professor Kingsfield grills student after student on classic contracts cases like Hawkins v. McGee have for years served as a sort of example of the “typical” 1L experience with the dreaded Socratic method.
While Professor Kingsfield surely sits at one end of the spectrum for professorial style, the Socratic method he uses endures. It is, as one text notes, law school’s “signature pedagogy.” It’s the way the law school professors across the country have been teaching law students about legal analysis for more than a century.
And students learn. They begin their first year of law school with, to paraphrase Professor Kingsfield, “a head full of mush.” Even by the end of that first semester, though, most 1Ls have developed an ability to turn that mush into cogent analysis, to make fine-line distinctions, to look for weaknesses in another’s argument, and to argue both sides of any issue; in other words, they learn to “think like a lawyer.” This “thinking like a lawyer” is undoubtedly a necessary professional skill; however, mastering the process can come at a personal cost.
For all of the successes of the Socratic method, some have argued that it has serious flaws. Most recently, Professor Elizabeth Mertz has criticized the Socratic method because of its “acontextual context.” She notes that the Socratic method virtually ignores morality and social context in its attempt to teach students “objective” analysis. Continue reading “Thinking Like a Lawyer”
As I was driving home the evening of Memorial Day, I happened upon Terry Gross’ Fresh Air. She was interviewing former Marine Donovan Campbell. From the NPR site:
Campbell served three combat deployments, two in Iraq and one in Afghanistan. In Iraq, he commanded Joker One, a platoon of new Marines that he trained and transformed into a fighting unit. They were assigned to Ramadi, the capital of the Sunni-dominated Anbar province where they engaged in daily house-to-house combat with insurgents. Campbell has written a memoir about his experiences with the platoon called Joker One: A Marine Platoon’s Story of Courage, Leadership, and Brotherhood.
You can read the NY Times Book Review here. Among other accolades, Campbell was awarded the Bronze Star with Valor. I can proudly declare that Donovan and I were high school classmates in Texas. Accordingly, I can personally attest that Donovan was then (and surely remains) a man of the highest integrity, in and outside the classroom, and on and off the sports field, where he excelled as a true scholar-athlete.
One episode from the angst-ridden days of high school illustrates Donovan’s character. I fondly recall that the spring semester senior year he gave up time from track-and-field and made a self-effacing foray into “my” realm of thespian endeavors, donning Musketeer garb as a commedia dell’arte palace guard in Carlo Gozzi’s Il Re Cervo (The King Stag) and standing ramrod-straight and bellowing “Sir, Yes, Sir!” USMC-boot-camp style. Continue reading “Professional Responsibility: One Marine’s Example”
Following up on my post regarding email negotiation last week, the ABA Journal noted this week that there are limits on the use of social spaces in order to gather information:
A lawyer who wants to see what a potential witness says to personal contacts on his or her Facebook or MySpace page has one good option, a recent ethics opinion suggests: Ask for access.
Alternative approaches, such as secretly sending a third party to “friend” a Facebook user, are unethical because they are deceptive, says the Philadelphia Bar Association in a March advisory opinion.
Not telling the potential witness of the third party’s affiliation with the lawyer “omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness,” the opinion explains.
“The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she [might] not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”
Continue reading “More Advice for Online Contact”
In our final Law Governing Lawyers class, we had an extended discussion of proposed ABA rules strongly encouraging—if not requiring—minimumpro bono work by members of the bar (or law school students). What prompted this was our reading on the unmet need for legal services. Among the indigent, those seeking immigration or asylum, and the mentally ill, legal services are virtually unobtainable.
This is especially true for civil actions; at least in criminal actions an attorney can be appointed for an indigent client. Civil representation for disadvantaged clients, in contrast, is often unaffordable. When they can afford it, the lawyer is usually one whose entire client base is barely able to afford any fee. Such attorneys mean well but be struggling with humongous case loads and limited resources. My basic legal processes are infeasible for them, especially a thorough investigation or discovery. While trying to help so many in need, they may be unable to provide any client with truly competent or adequate representation.
Legal clinics (such as our own venerable Marquette Volunteer Legal Clinic) try to fill the gap, but often such clinics can only offer advice and direction. They cannot or do not provide representation.
Against this backdrop, the ABA House of Delegates has considered and rejected changes to Model Rule 6.1 that would require lawyers to provide at least 50 hours of pro bono work per year, with a relatively cheap hourly buy-out. There are of course, always mechanistic complaints: how would compliance be recorded? how would the requirement be enforced? what would the penalty be? These can be worked out.
The real problem seems to be other complaints that are more philosophical. What can a lawyer accomplish in 50 hours per year? Would forced-labor representation be substandard? Shouldn’t lawyers be able to avoid practicing in skill-areas they don’t want to practice in? And why are we picking on lawyers? Do doctors or plumbers have to do pro bono work? Continue reading “In America You Can’t Buy Justice. But You Can Rent It.”
Earlier this week, the Wisconsin Court of Appeals issued an interesting decision involving remedies for the discharge of in-house counsel in violation of the Equal Pay, Act, Title VII of the Civil Rights Act of 1964, and the Wisconsin Fair Employment Act. Sands v. Menard, Inc., involved a claim by a lawyer terminated from her position as vice president and executive general counsel of the Wisconsin-based building supplies company. The lawyer had claimed that she was the victim of gender-based pay discrimination. The matter was submitted to arbitration, and Menard was determined to have violated the lawyer’s rights in underpaying her and retaliating for her complaint.
The arbitration panel awarded the lawyer compensatory and punitive damages and also ordered reinstatement, a remedy that neither party sought. In upholding the reinstatement order, the court provided the following analysis: Continue reading “Reinstatement of a Wrongfully Discharged Lawyer?”
As an exercise for my ethics class, I had each student write down his or her top ten commandments of billing. My hope was that the students would both learn these rules and have them in a nice, easy place to find and print once they start practice. As the Ten Commandments was on this past weekend, it seemed appropriate to post the top ten commandments from the class.
1. Thou Shall Keep Track of One’s Time, Whilst Not Waiting Until the End of the Month to Write Them Down.
2. Thou Shall Scribble Thy Fees on Papyrus and Present Them to Thy Client
3. Thou Shall Not Overbill, Nor Double Bill, Nor any Multiples Thereof
4. Thou Shall Not Bill Your Client for an Hour of Work Because You Thought About the Case for Two Minutes in the Shower
5. Thou Shall Not Runneth The Meter for Additional Billing Hours
6. Thou Shall Not Wing It; Thou Shall Have and Hold to Thy Billing Guidelines
7. Thou Shall Not Recycle Thy Work as if It Had Been Born Anew
8. Thou Shall Return Thy Clients’ Phone Calls
9. Thou Shall Not Sue Thy Clients for Unpaid Bills (Unless You Want to be Countersued for Malpractice)
10. Thou Shall Not Sell Thy Soul to a Firm with Billing Requirements that Do Not Meet Thy Personal Expectations for a Work and Family Balance
Are we missing any of your favorite commandments? What else should we make sure our students think about in order to avoid the messiest of conflicts, those with clients?
. . . but I internalized the norms of the legal profession early. I first became a lawyer at Badger Boy’s State. My first case was to defend a floormate who was accused of throwing water out a window on a counselor. I knew he did it because I was there. I also knew that he was far enough from the window that he could not be identified. Great cross (for a 17 year old) and an acquittal. Since then, I haven’t been clean a day in my life. My name is Rick E., and I believe in the adversarial system . . . .
I’m not stalking Mr. Samis through the Blog, but his post on the demands of confidentiality when a client has disclosed evidence of a past crime reflects a timeless ethical dilemma. Here’s another good one.
Assume that your client has told you that he committed the crime. You now can’t call him to deny it, but you were probably never going to do that anyway. How else should that impact the way in which you present a defense? Continue reading “When I Was Just a Baby, My Mama Told Me, Son/Always Be a Good Boy . . .”
I am just finishing up Law Governing Lawyers with Prof. Schneider. I did wonder before the class first met why the course was not called something like “Legal Ethics”; after all, even our text is entitled “Ethical Problems in the Practice of Law” by Lerman and Schrag.
It didn’t take long to discover that the law governing lawyers, while usually ethical, occasionally requires behaviors that cannot possibly be squared with any ethical system.
The one that stands out most is Rule 1.6 in the Model Rules of Professional Responsibility. In Wisconsin, this Rule is codified as SCR 20:1.6 Confidentiality.
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).
[paragraphs (b) and (c) omitted.]
The rationale behind the Rule is that effective representation depends on the client’s candid communication with his or her attorney, which depends on trusting the attorney to keep the client’s confidences. Everyone has a right to fair treatment by the law ensured by effective representation. I get that, and at first glance, there is no apparent ethical dilemma. If clients tell their attorneys about ongoing or impending criminal acts, paragraphs (b) and (c) require or allow reporting.
But deeper reflection in class drew out a serious ethical dilemma from tragic cases in which lawyers are given information about past crimes, which does not fit the given exceptions and withholding of which is difficult to justify. The most tragic cases are child killers whose victims have not been found. When the killers tell their attorneys where the bodies are, can the attorneys be compelled tell the families or the police? From several cases, the answer is ‘No’. Continue reading “Bad Law Makes Tragic Cases: Is Rule 1.6 Unethical?”
An online dictionary defines a sting operation as “a complicated confidence game planned and executed with great care (especially an operation implemented by undercover agents to apprehend criminals).” In law-enforcement contexts, covert investigation tactics are essential to obtaining evidence of criminal conduct committed by participants in sophisticated criminal enterprises. Evidence of common street crimes such as drug dealing and prostitution is often gathered with sting operations as well. Lawyers sometimes advise or supervise these activities to assure compliance with the law and admissibility of any evidence that is gathered.
Compare this with the sting operation carried out by a Madison, Wisconsin, criminal defense lawyer against the fifteen-year-old who accused his client of repeated sexual assaults beginning when the boy was nine years old.
The lawyer believed that the boy was lying and thought that the boy’s computer might contain evidence of the child’s independent interest in child pornography. The lawyer was concerned that the police investigator would not objectively seek and examine such evidence and that the boy might destroy evidence on his computer if given any warning.
The lawyer decided to retain a private investigator to trick the child and his mother into surrendering the boy’s computer and any evidence it might contain. Continue reading “Sting Operation on a Child Witness”
I recently taught about successive conflicts in my ethics class, and there could be no better timing than the Fish & Richardson case to explain the hot potato scenario. The “hot potato doctrine” means that firms are generally prohibited from dropping smaller clients (like hot potatoes) in order to pick up more lucrative clients.
Apparently, Fish & Richardson represented, until recently, headset maker Aliph in its regulatory work out of Fish’s D.C. office. Aliph is now suing to have Fish & Richardson disqualified from representing a direct competitor against it in a patent case. As the Recorder explained:
Aliph Inc. moved to disqualify Fish from representing Bluetooth rival Plantronics in the patent case two weeks ago, arguing that the firm shouldn’t be allowed to sue its own client or get out of the mess by suddenly disowning Aliph at 8:30 p.m. the night before . . . .
Continue reading “Hot Potato Conflicts”
As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover. We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt. And what was the role of lawyers in all this? Financial transactions of this sort inevitably involve lawyers at some stage. Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this. And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.
Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients. To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial. But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it? Assume further that the fraud is on-going and not a past act. What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)? Continue reading “Client Fraud and the Lawyer”