Tuesday, June 10, 2008
[posted by Bill Henderson]
Last week, I attended the Indiana State Bar Association (ISBA) Solo & Small Firm Conference. I first started attending this event back in 2004 when I was preparing to teach my course on The Law Firm as a Business Organization. (In fact, the first year I attended the "boot camp" for lawyers who want to open their own practice.)
It is often said by practicing lawyers that law school does not prepare students to practice law. Within the law school environment, this is commonly interpreted as lack of practical skills training. Thus, externships, clinics and skills courses are often cited as the solution. Yet, my regular attendance at the ISBA Solo & Small Firm Conference has given me a different gauge to understand where we come up short. And frankly, I think the gap between law school and practice is often about something much more fundamental and human.
For example, this year (like every year), some touchstones of success included:
- Listening to clients--it is amazing (a) how unnatural this skill is for most lawyers and (b) how it can revolutionize your career if you learn how to do it.
- Updating your client monthly with a (free) status
report--well-informed clients are usually more satisfied, less likely to
complain, more likely to pay the bill, and more likely to refer business.
- Leveraging technology to increase office efficiency, including the importance of paying for high-quality training--few people are more tech-savvy than the solo and small firm crowd. Why? It is really a matter of financial survival.
- Learning to say "no" to matters outside your area of competency or to a client who has unrealistic expectations--which is extremely hard to do when you are experiencing cash flow problems. Yet, in small firm practice, poor judgment has serious and potentially irreversible financial consequences.
- The importance of networking, reputation, and not being a jerk--the most successful small firm lawyers enjoy relationships with people as an end in themselves. And from these relationships flow tremendous referral business.
None of these "skills" are taught or even signaled as important in law school. Indeed, with the
large tilt in law schools toward professors with large law firm
experience--and virtually all as associates rather than equity
partners--it is likely that we law professors undervalue the importance
of commonsense and practical judgment in building a successful
career. (How many of us could meet a payroll twice a month? What a daunting prospect!) Law schools supposedly teach students how to think like a lawyer,
but this often takes the form of an appellate lawyer who manipulates
the law under a fixed set of facts--with the most proficient having a shot at becoming a law professor.
But in my observation, this is a extremely truncated view of how
lawyers add value to clients and ultimately earn a living.
In sum, I want to go on record with my admiration of many solo & small firm lawyers who juggle a wide array of difficult client problems with such good humor and grace. They also provide concrete evidence that professionalism and integrity are the cornerstones of successful and happy careers. That is a message I hope to convey to my students. I am immensely grateful to the ISBA Solo & Small Firm Conference for once again giving me the opportunity to learn more about the lives of lawyers.
A recent hearing officer report, now pending before the Arizona Supreme Court, involves misconduct by a lawyer in the course of representing a friend. The friend had married an exotic dancer, who the lawyer told the friend prior to undertaking the representation that he "desired...sexually." The representations were adverse to the wife, involving assault and a petition for annulment. The lawyer visited the wife at her place of employment, where he declined her offer of a lap dance. She then hired counsel, but he continued to have contact with her without authorization from her attorney or the knowledge of his client.
While representing the friend, he told the wife "at least" the following:
After this case is over, I'd love to take you out.
When this case is over, I'm going to knock the bottom out of you.
I love to be near you.
I like you, I like you a lot. I do.
The lawyer also met the wife for dinner, discussed the case, and paid the bill. They also kissed; according to the lawyer "without his encouragement." ("For purposes of this consent agreement, the State Bar does not contest this statement.") He eventually withdrew from the domestic case, citing a conflict of interest, and withdrew from the criminal case after a bar complaint was filed by the wife's attorney. The hearing officer recommends a 60 day suspension followed by one year of probation. (Mike Frisch)
An Arizona hearing officer has filed a report that recommends a public censure and one-year probation for lack of diligence and failure to adequately communicate with a client in a dissolution matter. The attorney also had not responded to the Bar's inquiry, in part because he had been "thrown from a horse, breaking multiple bones in his spine and several ribs." The hearing officer felt the attorney had gained insight that would help avoid recurrences. The lawyer "agrees that he did not do his best work and dropped the ball on [the client's] case." (Mike Frisch)
The Wisconsin Supreme Court affirmed a criminal conviction for securities fraud. Among other things, the court held that the trial court did not commit eror in admitting the testimony of an attorney expert:
...appellate courts use the deferential erroneous exercise of discretion standard when reviewing a circuit court's decision to admit expert testimony. We are satisfied that the circuit court did not erroneously exercise its discretion in admitting [attorney] Cohen's testimony, because the circuit court's decision rested on a reasonable basis and was in accordance with both accepted legal standards and the facts in the record. Cohen's testimony was the type of expert testimony that was envisioned by Wis. Stat. § 907.02, because it encompassed specialized financial knowledge that would assist the jury in understanding the evidence presented at LaCount's trial. Such testimony also could assist the jury in determining a fact in issue in the case, here, whether LaCount's transaction with Wills involved a security.
Further, the expert testimony did not improperly involve an ultimate fact. (Mike Frisch)
The web page of the Ohio Supreme Court reports that over $200,000 was awarded to 25 clients from the Clients' Security Fund. The summaries are interesting in that Ohio appears to reimburse clients who pay for legal services that are not performed. Many trust funds only will reimburse victims of more classic lawyer theft such as misappropriation of entrusted funds, but perhaps taking money and doing nothing may be properly considered as a species of theft. Ohio appears to think so.
As always, the announcement contains the following reassuring language:
The CSF was created in 1985 by the Supreme Court to reimburse victims of attorney theft, embezzlement or misappropriation. The CSF is not taxpayer funded, but funded entirely by registration fees paid by every Ohio attorney. Ohio has more than 35,000 attorneys engaged in the active practice of law. Less than one-tenth of 1 percent of those attorneys is involved in CSF claims.
Monday, June 9, 2008
The New Jersey Supreme Court imposed an admonishment of a municipal court judge for conflicts of interest in his representation of a client in family court and civil matters. The judge did not recuse himself from a matter that involved the defendant in the family case. The (unrelated) case had to do with the defendant's failure to connect to the municipal sewer system. The judge then presided over a charge against his own client for alleged interference with custody rights and conducted her arraignment. Opposing counsel in the family court case filed the complaint.
The Advisory Committee on Judicial Conduct had proposed dismissal and private discipline and further recommended that part-time judges with a private practice "keep and preserve a conflicts list that they can regularly consult in the performance of their judicial duties" to avoid such problems. The court rejected the recommendation in favor of public discipline. (Mike Frisch)
The California Bar Journal reports that the State Bar's Board of Governors has "finally" approved a malpractice insurance disclosure rule. The web summary notes;
By a vote of 16-4, the board accepted a compromise rule of professional conduct that a lawyer who does not carry professional liability insurance must disclose that to a client (a) in writing, (b) at the time of engagement and (c) if the representation exceeds four hours.
The recommendation now goes to the California Supreme Court for approval.
“This proposal should not be troubling to the board,” said bar President Jeff Bleich, adding that the “parade of horribles” suggested by opponents to disclosure has not happened in any state with more aggressive policies.
But John Peterson, a governor from Fresno who favors both a disclosure requirement and posting a lawyer’s insurance status on the bar’s Web site, described the proposed rule as “an unnecessary irritant to the attorney-client relationship.”
And to board members who described the compromise as a half loaf that was better than nothing, he retorted that a “moldy half loaf” was not acceptable.
The Arizona Supreme Court adopted the recommendation of a hearing officer and the Disciplinary Commission for public censure and probation for one year in a case where the attorney had failed to supervise a paralegal in the drafting and filing of an answer to a complaint. When the attorney-client relationship broke down and the attorney withdrew, he contacted the Department of Homeland Security and a state court prosecutor to accuse the clients of criminal conduct (housing undocumented persons) and perjury in the underlying civil case. Neither contact resulted in harm to the former client.
The hearing officer found the the attorney "is a passionate and somewhat larger than life individual. While there is certainly room in the law for passionate professionals, there comes with the passion a responsibility to not let it get the best of you. Simply stated, there is a line that discipline and good judgment should keep one from crossing...Should he continue to exhibit poor judgment, he faces greater sanction." (Mike Frisch)
The Arizona Supreme Court disbarred a former deputy county attorney with no prior disciplinary history and a reputation "as an ethical, professsional, and highly competent lawyer." The facts are set out in a hearing officer's report. The problems started when the attorney took her daughter to a pediatric ophthmologist and fell in love with the doctor. He was addicted to painkillers and she allowed him to use her name for prescriptions and kept some for her own use. When the DEA began investigating, she lied to them and tipped the doctor off to their interest in him. Criminal charges were filed against her, leading to a guilty plea. She also violated terms of her release that prohibited contact with the doctor and was charged with "DUI and Extreme DUI" after a traffic accident.
The hearing officer had found that the misconduct "occurred within the context of a personal, emotional and ill-fated relationship with [the doctor], and not when she engaged in the practice of law" and proposed a one-year suspension. A majority of the Disciplinary Commission had recommended disbarment, noting that the attorney had lied in the criminal case to avoid conviction, lied to the State Bar, and "counselled [the doctor] in the commission of a murder." While the conduct had taken place in her personal life, "it is undisputed that some of the Respondent's misconduct occurred when she was employed as a prosecutor. It is precisely because of Respondent's legal background, her understanding of the law and the position she held as a prosecutor, that if she is unable to distinguish between her personal and professional life and if her personal life has rendered her judgment impaired, then she is not fit to practice law." A commission dissent favored a three-year suspension. (Mike Frisch)
Sunday, June 8, 2008
Posted by Alan Childress
I think hard work (preferably non-law) and/or travel are the best preparation for starting law school, for opposite reasons. Hard work so that being back in school will be fun, will feel like a reminder that it's not the real world (sometimes for the better). Or travel because it may be the last time for a while. Either way, come to law school fresh and grateful for the opportunity.
Elsewhere, and with more substance and literary value, there is advice from several good sources:
--suggested summer reading lists from law schools at Appalachian and Hofstra, as well as U Conn's Anne Dailey. Tulane's own Susan Krinsky has an extensive and thoughtful reading list that she has put together for admitted and prospective students to choose from: Download List2008.pdf.
--a few tips posted on Amazon.com, now that it is working again.
--serious advice from The J.D. Project, Inc. in this post.
--a student at Widener gives this advice on its admissions site.
--an "older guy" offers advice at nontradlaw blog.
--Eugene Volokh and lots of commenters here spoke to the reading list issue in 2007, and even more VC commenters added their book ideas here. (Our recent post related to To Kill A Mockingbird is here.)
--a response to Volokh, from the feminist perspective, by Ms. JD and her commenters. It includes doing nothing or getting a tan.
Me, I worked in a movie theater selling tickets, and for a papermill company counting beavers. The latter involved some travel. And I got tanned.
UPDATE in 2010: To the extent some of the lists have Holmes, The Common Law, on the list -- or even more so if they leave it off because it is somewhat inaccessible despite its clarity on criminal intent, torts, and contracts -- there is my new ANNOTATED version of it that makes it accessible to anyone, even non1Ls. It is at Amazon for Kindle and apps for Apple, PC, BlackBerry, Ipad etc. And at Smashwords for simple downloads and online viewing, including a very nice linked and active PDF for those who do not have reader apps in epub or Kindle formats. Smashwords also has it in epub for Nook and Apple, and has Sony and basic rtf and Java. Look for a paperback by early fall 2010.
UPDATE in 2012: all the lists seem to have Llewellyn's The Bramble Bush, as a how-to guide to 1Ls, so I helped bring it back and made it available in Kindle, iBooks, Nook, and paperback. Blog post on that here; and Amazon is here. We also released Epstein's Women in Law. Enjoy!