Open letter to California lawyers, part 1

California lawyers just got a wake-up slap from Governor Arnold Schwarzenegger that has been long overdue.  In short, he has said “no” to a State Bar to take yet more money from us that would fund continuing ineptitude.  Am I too harsh?  I quote the Governor, in part:

I am returning Senate Bill 261 without my signature.  This bill would, among other provisions, authorize the State Bar to collect annual bar dues from its members for 2010.  In 1997, Governor Pete Wilson vetoed the annual State Bar dues bill, citing numerous concerns that the State Bar had become overly political, unresponsive to its membership and inefficient.  Unfortunately, 12 years later, inefficiencies remain unaddressed and questions about the State Bar’s role in the evaluation of judicial nominees suggest that the State Bar’s political agenda continues. . . .

He goes on to cite significant salary increases, escalating costs of disciplinary system and decreasing inquiries, and the lack of internal controls that allowed embezzlement of nearly $676,000 from a former employee. 

As the organization charged with regulating the professional conduct of its members, the conduct of the State Bar must be above reproach.  Regrettably, it is not.

Unfortunately, he is dead on accurate.

Howard B. Miller, President of the State Bar, responded to Gov. Schwarzenegger’s veto with an opinion column in the California Bar Journal, stating that we need to “think through our values and purposes” and references “candor and honesty,” then reports the forming of various committees.  Gee, that ought to help.

I am proposing something a little more bold, perhaps more helpful.  Just two proposals that will get us going in the right direction.  

Request No. 1:   I directly ask, no, I insist, that each and every California lawyer that has taken money from consumers with the promise of helping them obtain debt relief or avoid foreclosure and fraudulently failed to perform such work – RESIGN, NOW!  Do not force other lawyers to pay for your prosecution before the State Bar.  Do not force the citizens of California to foot the bill for any related criminal investigations.  Do not continue to force the legislature to enact emergency laws (i.e. Senate Bill 94) to prohibit conduct that you ought to know is exploitive and fraudulent.

If you have a legitimate defense to an accusation of misconduct (mistaken identity or legitimate factual misunderstanding), feel free to defend your innocence.   As for the rest of you, get out of our profession and go sell used cars or something.  If you want to make technical legal defenses or have some other lame excuse (see Req #2, below), don’t waste our collective time with it. 

Request No. 2:  Adopt a zero tolerance policy for unethical and criminal conduct among California lawyers.  Stop giving excuses for misconduct. 

Anyone who has practiced in criminal court hears ongoing litanies of excuses from criminal defendants (Paris Hilton comes to mind as but one example) as to why their conduct has not matched the expectations of society or the court.  They aren’t accepted.  Penalties are meted out.  But not for lawyers.  Let me give you but a few choice examples of “mitigating circumstances” to gross misconduct reported in the Bar Journal this month.  None of the lawyers giving these excuses was disbarred despite serious and repeated instances of gross misconduct:

• Numerous health problems from two auto accidents
• Husband’s loss of job
• Death of a grandchild and hospitalization of another grandchild
• Severe emotional difficulties due to depression
• Divorce
• Mother’s illness (several of these)
• Providing for a parent who had had a stroke
• Providing for a friend with a difficult pregnancy
• Cooperation with the bar investigation (how is that a mitigating factor?  that should be a given)
• Submitting letters attesting to his good character
• Severe personal problems, including alcoholism and depression
• Out of state frequently
• On maternity leave
• Exceptional legal abilities and dedication to public service (well, other than misusing his identification as a DA to get out of a DUI arrest, interfering with a patrol officer, compromising the relationship between the DA’s office and the CHP, insurance fraud, hit & run charges, lying to a police officer, blaming a non-existence individual for an accident he caused while driving drunk, etc.)

Get real!  These are not legimate excuses for repeatedly stealing your clients money, driving drunk, failing to competently represent your clients.  If such burdens of life do not qualify you to perform your chosen profession, go choose another profession.  Clients trust us with their money, their families, and sometimes even their lives.  We owe them to keep ourselves physically, mentally, and ethically prepared to undergo such responsibilities.

I could go on, but I leave you with (thank God finally disbarred) attorney Armand J. Pasano (#1459928) of Montebello who was finally disbarred after “a pattern of conduct during a 14-year-period” who argued that he suffered from “severe emotional difficulties, a protracted and acrimoniouis divorce proceeding that led to stress and excessive consumption of alcohol.”  His argument was diluted, however, because the court said he “drank heavily prior to the recent misconduct” (was that 14 years ago, or a couple years ago?) and noted his recent guilty plea to misdemeanor battery of the mother of his children.

If you can’t act in an honest and ethical manner, get out of the legal profession.  And enough with the excuses!

Legal rebels need another leader, it seems

After getting off to a roaring start, it seems the ABAJournal’s Legal Rebels tour is already running out of steam.  I had such high hopes, but find myself sadly disappointed.   

A common definition for “rebel” is “to resist or defy an authority or a generally accepted convention.”  Susan Cartier Liebel has done that with the Solo Practice University.  Laurel Edgeworth has done that with the Law Clerk Connection.  Mae O’Malley has done that with Paragon Legal.  The latest four “rebels” seem to have done nothing rebellious at all.  They talk a lot, add a little use of technology, try to get lawyers to “stoppeth” using old English words in contracts, and make it a little more efficient to shovel around huge volumes of documents.  Come now, can’t we do better than that?

ABA Journal – you can do better.  And get rid of the silly “Legal Rebels” skateboard.  I don’t know what it is intended to represent or convey, but I haven’t come up with any flattering explanations yet.

P.S.  I have determined that I will give the ABAJournal Legel Rebel’s a temporary benefit of the doubt and continue to follow progress of their project.

The tweet-up virgin has an epiphany

This evening I attended my very first “tweet-up”* after a long day of continuing legal education at the California Bar Association’s Annual Meeting. 

*For you those of you as ignorant as I was a day or two ago, a tweet-up is a real world meeting between two or more people who know each other via Twitter, an online networking service.  Although often used for mere social purposes, Twitter has become an important  aspect of business and even international politics.

This particular tweet-up was courtesy of Adrian Dayton, author of the just released “Social Media for Lawyers: Twitter Edition,” and attended by a collection of wonderful people involved with the legal profession in one way or another. 

As I left for home I felt strangely energized and wondered why.  What was the appeal of this particular group of people over any other random collection of strangers I might meet at any other bar function?  And then it came to me, like a bolt of lightening  – these people were interested in positive relationships with other people.  It was making those relationships, helping other people, that drove them to their business success.  They revelled in their ability to help other people succeed.

How remarkably unlike lawyers!

Positive people vs. negative people.  Yet another understanding of why people hate lawyers. 

Yesterday Stephen Fairley of The Rainmaker Institute (a non-lawyer) gave a 3-hour presentation on “The Top 10 “Secret” Strategies Used by Rainmakers:  How to Build a 7 Figure Law Firm During Difficult Times.”  His core message – building relationships will increase your business success.  It was marvelous and I already have a long list of his suggestions that I will implement in my businesses.  I walked out the door excited to work on my client relationships.

The Bar Association won’t give me any CLE credit for that class, however.  They will give me credit for today’s class on avoiding malpractice claims (by lawyers) which included a passing reference to the well-known fact that a large number of malpractice claims arise out of failure to communicate with one’s client.  I walked out feeling depressed.  A fellow lawyer attended a class that pointed out all the pitfalls of using social media; she walked out feeling angry.

Lawyers know how to suck the life out of everything, though there is no need for it.  As but one example, if lawyers would implement Stephen’s recommendations for building more successful law practices - creating and maintaining strong relationships – they would reduce their malpractice liability.  Two birds – one stone.  They might also be infinitely more appealing to hang out with.

It is time for the legal profession to stop focusing on the negative and return to the role of helping other people.  Novel, isn’t it?  Make a positive contribution to society.  Ironically, it follows sound business development practices.  Stephen, perhaps you should rename your seminar “Why People Hate Lawyers and How You Can Change That (and make more money in the process).”

So, my new tweet friends (including Donna Seyle who graciously transposed Tweet into regular email to invite me), thank you for sharing your remarkable positive energy on a profession that has long been in decay, but is finally making a change for the better, one tweet at a time!

Legal rebels unite!!!!

While I am busy “rethinking” the legal profession (and doing my part to implement change with FreelanceLaw and the National Association of Freelance Legal Professionals), the ABA Journal has given a great boost to us visionaries through its Legal Rebels project. 

A Legal Rebel road tour has just kicked off that will profile 50 of the countries’ legal visionaries and I am eager to follow its progress, especially because I’ve personally talked with some of them and know what profound and important changes they are working on. 

The first rebels to be profiled have already been identified - 

Cheryl Conner
Founder, New Prospects Collaborative
Advocating holistic, collaborative law

Susan Cartier Liebel
Founder, Solo Practice University
Teaching lawyers how to be solo practitioners

Daniel Schwartz
Chair, Task Force on the Future of the Connecticut Bar Association
Helping a state bar association become more tech-savvy

Kenneth Adams
Founder, AdamsDrafting
Educating lawyers to be better writers

Michael Will
Founder & CTO, docGenix
Designing software that helps lawyers work better and faster

Frank Aquila
Partner, Sullivan & Cromwell
Using mainstream and social media to pull back the veil on mergers and acquisitions

David Lat
Founder, AboveTheLaw.com
Remaking legal journalism by crowd-sourcing the news

William Mellor
President, Institute for Justice
Proving humor has a place in issues advocacy

Rodney Smolla
Dean, Washington and Lee School of Law
Revamping law school in a practical mode

Cynthia Calvert
Co-director, Project for Attorney Retention
Seeking a work/life balance in law firms

Rethinking juries, Part 1: Changing the perception of jury service

Jane Q Citizen returns home from a hard day of work and sighing, flips through the day’s mail.  Junk mail, junk mail, junk mail, bill, bill, bill, credit card offer . . . Juror Summons.  $%@#@^&$%^&*(&$@  !!!!  “Don’t I have enough stuff to do already?”  “My boss is going to hate this.”  “My spouse will complain about having to take the kids to soccer practice” . . . “I DON’T HAVE TIME FOR THIS!!!!!”

Far be it from me to minimize Jane Q Citizen’s legitimate concerns.  It can be a pain in the you-know-what to disrupt your schedule to sit in a courthouse and listen to someone else’s problems and make a decision on someone else’s dispute.  Her concerns are not entirely selfish either.  Jury service can be a disruption to Jane’s family, employer, and co-workers too. 

Here’s the thing, however.  Jury trials are an important and necessary part of our government, our economy, and our everyday lives.  The jury room is the only true democracy left in the world, the only place where every voice is heard, every vote is counted, and nobody leaves until there is a consensus.  It is pure democracy, practiced by a rotating group of everyday citizens making common sense judgments on important issues.  It should be considered a privilege to serve on a jury, not a burden.

From my experience, anyone serving as a juror is considered by their friends and coworkers as being less-than-bright for not finding a way to avoid serving.  “Can’t you tell them you have childcare responsibilities that you cannot avoid?”  “Can’t you tell them that you are involved in a crucial project at work?”  “Why didn’t you tell them that your employer won’t pay you while you are on jury duty?”  The proffered excuses are endless.  The pressure immense.  In other words, juries are now primarily composed of people who have nothing else to occupy their days or weren’t creative (or devious) enough to avoid serving.  That must be confidence inspiring for anyone whose fate will be determined by a jury!

What can be done to change the perception of potential jurors towards serving on a jury?  What can increase the willingness of Americans to take a turn at jury duty?  I have a few suggestions. 

First, eliminate the ambush factor in jury service.  Jury summons are sent out on a random basis with no concern for the schedules of the potential jurors.  Yes, there are procedures for postponing service, but that may result in another random assignment that is equally inconvenient.  Why not send out a questionnaire asking for two weeks of availability/relative inconvenience for jury service at the beginning of the year?  Imagine . . . business people being able to schedule jury duty during their typically slower times of the year, school teachers making themselves available during summer break, students being available during vacations from schools . . . is that so hard?

Second, encourage participation in the system.  I recently was called up for jury duty.  Despite all of the Jane Q-like excuses and pressures, I told my family and work that I would show up for jury service and not try to get excused.  I’m self-employed, I would lose some money while on jury duty, but I am a trial lawyer.  It is hypocritical for me to require jurors when I take a case to trial, but not be part of the jury pool.  During the preliminary procedures in the jury reporting room, we were all asked to indicate whether we could be available for a two-week trial.  While I was willing and able to serve a couple of days, even a week, on jury duty, a two-week trial would bring my law practice to a screeching halt and cause financial concerns; I responded “no.”  The juror commissioner’s office response – “you indicated it would be a financial hardship for two weeks, don’t you want to just claim financial hardship and get excused entirely?”  Actually, no.  I can afford to serve for a short trial, thank you very much.  She shook her head as though I was crazy.

I, for one, am spreading the message of the importance of jury duty every time I get a summons for jury duty and every time a family member or co-worker gets one.  I encourage them to serve.  I encourage them to participate.  When one of my employees gets noticed for jury duty, I’ll work with them to ensure they get the time off and get paid.  What are you going to do?

ABA Journal adds “Rethinking the Legal Profession” to its blawg directory

Congratulations to me!

The ABAJournal has just confirmed that this blog has been added to its Blawg list – http://www.abajournal.com/blawgs/rethinking_the_legal_profession/

Shouldn’t somebody besides the lawyers understand the Constitution?

Yesterday I had the misfortune to witness a town meeting in Pennsylvania where Arlen Specter attempted to offer a forum for citizens who had questions or concerns about the current health care proposals swirling around Washington.   I applaud his willingness to meet in person with his constituents and hear them, irrespective of their often disrespectful tone.   But that isn’t the reason I’m writing this blog.

One woman at the town meeting stood up and very emotionally pleaded for Mr. Specter and all of those in Washington to return this country to “what the original founders had intended” and made some reference to those founders rolling over in their graves.  My initial urge was to reach into the TV and shake her and say “haven’t you taken a history class?  Don’t you know that we have far progressed from what the founding father’s intended or wrote?  Don’t you know that the founding fathers DIDN’T EVEN LET YOU VOTE!?”

The woman was partially right.  I can envision ol’ George, Ben, and Tom rolling over in their graves if they knew women could vote, that slavery had been abolished, and that a black man had been elected President of the United States.  Let’s not kid ourselves.  As much as we admire our founding fathers, they didn’t know everything and they got some things wrong or incomplete.  I’d like to think that we as a country continue to progress and grow and learn things.  No disrespect to George, Ben, and Tom – they did an incredible job in creating a new form of government that, in its basic structure, has remained unchanged for well over 200 years.

Unfortunately, we have a populace that is largely uneducated and ignorant about the Constitution and all of the legal progressions of our country since then.  They don’t understand that their everyday lives are influenced by legal decisions that have been made by courts over time.  And what one does not understand, one cannot competently argue.

Every licensed attorney (and public official) in this country swears to “uphold the Constitution.”  Maybe those who have actually studied the Constitution and swear to uphold it ought to take a more active effort to educate those who “wave around” the Constitution without understanding its meaning.  Perhaps education can begin bridging the gaps that keep Americans from disagreeing without hating each other.

The painful void of mentoring for young attorneys reflected in craigslist ad

This afternoon I stumbled across a craigslist ad in the Chicago area that read as follows:

Attorney WILL WORK FOR FREE; MAYBE EVEN PAY TO WORK (Loop [Chicago area])
I am looking for a mentor. In exchange I will work on your cases and/or pay to work for the opportunities to learn more about depositions, discovery, civil procedure, oral argument and other subject matter. I am an intelligent lawyer working at a small class action firm. I just am not getting the proper training in certain areas that I feel I need to succeed e.g. Depositions, cv. Pro., organization, ect. Please contact me and we can discuss this rare opportunity.

Money = character in New York

I have just read a most disturbing article from the New York Times – Aspiring Lawyer Finds Debt Is Bigger Hurdle Than Bar Exam (http://www.nytimes.com/2009/07/02/business/02lawyer.html).  It seems that Robert Bowman, who worked himself from foster child to law graduate despite having to spend six years in rehab after a tragic accident.  He worked himself through undergraduate school and then to law school, taking out student loans on the way.  Add in some disputed hefty increases in his student loan debt, and suddenly his lenders claimed he owed over $400,000 in student loans.  He certainly hoped he could start hacking away at those student loan debts once he passed the bar and could get a job as a lawyer.  It took him a few tries, but he did pass the New York bar.  However, his dreams of becoming a lawyer were killed by five state appellate judges who determined that his student loans were too substantial and his efforts to repay them too meager for him to be a lawyer.

“Applicant has not made any substantial payments on the loans . . . Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law.”

Has your jaw dropped as far as mine has?  Let me see . . . AIG, GM, Chrysler (the list goes on) have recently been given billions of taxpayer dollars because they are so far in debt that it is argued that the entire economy will fall apart if they do not get propped up.  Mr. Bowman did not make poor business choices that sent the entire U.S. economy into a tailspin.  He worked hard and got an education.  But in New York, hard work apparently means nothing.  Mr. Bowman is deemed to not have sufficient “character” to be a lawyer.

Let’s not mince words here.  Mr. Bowman is being denied the right to be a lawyer because he is not rich.  If Mr. Bowman had a rich uncle or a trust fund, or  no one would question his character or general fitness to practice law.   He’s not asking for a handout or for a cushy job.  He just wants to be a lawyer.

Is it little wonder that people hate lawyers when the profession can’t even understand the meaning of “character”?

Rethinking how lawyers are employed

It is ironic that the very profession that has had a hand in creating increased legal protections for employees – wage/hour regulations, overtime pay rules, mandatory worker’s compensation coverage, etc. – has done such a poor job of protecting their own. Example, typical lawyers in private practice work far more than 8 hours a day, far more than 40 hours a week, and yet are statutorily excluded from entitlement to overtime pay protection. Why? If an employee drives a truck and is asked to put in several additional hours of work, he or she gets paid time and a half. If an associate in a law firm is asked to stay all night drafting a brief, he does not get paid time and a half. The lawyer is an “exempt” employee, meaning his employer can insist on any number of hours of work for a set salary. Lawyers, most often workaholics by nature, rarely seem to step back and look at the entire picture of compensation vs. work performed.

Consider young law school grad emerging from three years of intensive study and suddenly realizing she has over $100K in student loan debt to pay back. She’s worked hard, very hard, to get where she is and figures that maybe its time to collect the gold ring – a prestigious job (defined as something her family and friends say “oh, wow” to) with a nice paycheck (defined as something that will allow her to trade in her worn out car for a new Lexus and a snazzy new wardrobe). $160K a year? Its a good as a lottery ticket when you are fresh out of school. She’s too enamored by the feeling of being wanted (the law firm must think she’s talented) and the prospect of instant financial success to read the fine print. What must she give the law firm in exchange for the prestige and the paycheck?

Not unlike Ariel in The Little Mermaid, and countless other characters in stories we all know well, she has made the proverbial “deal with the devil.” She got something she wanted, but she must give up something in return and the price is high.

What is the price? What is in the fine print? Let’s start with time. Wage and hour laws across the country define “full-time” as 40 hours a week. A typical associate’s hours? 80/hours a week is not at all uncommon. That is the equivalent of two full-time jobs. So in reality, this young associate has undertaken two $80,000/yr jobs. Wouldn’t one be enough? Aren’t two full-time jobs going to seriously impair one’s ability to, say, spend any quality time with one’s family, participate in a sport or hobby, sleep? Is the money worth it?

Now let’s look at this from the client perspective. Why would a client want to entrust their serious legal matters to a law firm whose associates are overworked, sleep-deprived, and lacking in any work-life balance? Legal work requires sharp, unfatigued, intellect. There is no way that someone who spends 12 hours a day at the office on a regular basis can maintain keen insight at all times. Their brains slow down and don’t work as efficiently, ask anyone neurologist or sleep specialist. So the client is paying for fuzzy-brained lawyers working at a slower mental pace because of sheer fatigue, and billing on an hourly basis.

Seriously, is this the way to run our profession? It’s crazy and, you know what? The clients of the world are figuring it out and demanding a change.  The Association of Corporate Counsel’s new Value Challenge is but one example.

…the ACC Value Challenge is based on the concept that firms can greatly improve the value of what they do, reduce their costs to corporate clients and still maintain strong profitability.

– Michael Roster, Chairman, ACC Value Challenge Steering Committee

I take their challenge seriously, and any law firm who wants to keep their corporate clients ought to do the same.  We need to start with restructuring how lawyers perform their work on a day-to-day basis.  Ensure, by structure and design of working relationships, that a lawyer’s work product for which a client is billed is not from an exhausted associate at 2am.

And clients, corporate clients in particular, need to stop judging and choosing their law firms based on the AmLaw100 and AmLaw200 lists.  Those rankings are based on how much money those firms are able to extract from their clients, and how many billable hours they can extract from their associates, not the quality of work product or the cost efficiency of the work.  It is high time that clients needing legal services start developing a new system and new protocol for evaluating law firms and individual attorneys.   Its also high time for the legal profession to lead the way, one attorney and one law firm at a time, in offering alternative employment arrangements for lawyers, and resulting higher quality legal services to clients.