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What NOT to Put In A Retainer Agreement

As we at MyShingle have said many times, a retainer agreement is one of the most important tools that we lawyers have to protect ourselves from unscrupulous or troublesome clients.  It should be obvious though that lawyers can't use the retainer agreement to protect themselves by cutting off their clients' rights to file a grievance.  And yet, as reported in  Legal Ethics Panel Votes to Disbar Richard Lee, Rob Perez, Star Bulletin (2/25/05), that's what a Hawaii attorney did in at least 160 of his retainer agreements - and then tried to justify his action by claiming that the bar's prohibition of this practice constituted unjustified intervention in fee practices, tantamount to price fixing.

According to the article, attorney Richard Lee (also a former state judge), included a standard provision in retainer agreements that required clients to pay Lee $2000 if the disciplinary committee became involved in a fee dispute before an attempt was made to resolve the dispute via arbitration.  The bar believed that the purpose of the provision was to intimidate clients from filing an ethics action against Lee.  Apparently, Lee kept the provision in his retainer agreements for at least a year after the bar ordered it removed.

It's hard to imagine how an attorney could believe that a provision in a retainer agreement cutting off clients' rights to file an ethics complaint would ever withstand scrutiny.  And it's even harder still to imagine that an attorney would keep the provision in after receiving warning from the bar.  But Lee apparently tried to defend his retainer agreement, saying (according to the article), that the bar's interference in fee disputes is unwarranted and amounts to price fixing.

There's so much wrong with Lee's retainer agreement that I hardly know where to begin.  The agreement attempts to extract an unreasonable $2000 fee, punishes clientsfor exercising legal rights and places the attorney's interest over that of the individual client as well as the public at large, which is entitled to learn about a lawyer's unethical actions through the grievance process.  The only lesson here is that if you think Lee's retainer agreement is appropriate, then you should probably leave the legal profession now, while you can do so voluntarily - because with judgment like that, it's only a matter of time before you'll be ordered to go.

Posted by Carolyn Elefant on February 28, 2005 at 07:57 PM in Ethics & Malpractice Issues | Permalink | Comments (0) | TrackBack

Fabulous Resource from the Texas YLA

Kudos to the Texas Young Lawyers Association for this innovative project,, an online library of video presentations on topics like substantive law (mostly Texas, but some, like the talk on Ten Tips for Federal Court, can apply more broadly), ethics, building a firm and personal development.  Here's the Press Release (2/28/05) that further describes the project.

What's really remarkable about this project is that given the time that went into preparing it, the prsentations are available for FREE, even to non-bar members.  The press release reports that:

This online mentoring effort is unique in its range and depth. For months, a film crew criss-crossed the state to tape the first wave of more than 60 video lectures by luminaries, including Harry Reasoner of Vinson & Elkins, LLP, "King of Torts" Joe Jamail and Mike Boone, co-founder of Haynes and Boone LLP of Dallas. When the website officially launches March 1, nearly 100 presentations will be available at the click of a mouse.

Of course, keeping the resource free is important given the educational purpose behind the program:

The numbers tell the story," says Mr. McAtee. "With more and more lawyers entering the market each year, it has become more and more difficult for our profession's wisest leaders to mentor the next generation."

An overall rise in billable hours and heightened expectations of demanding clients have exacerbated the problem, McAtee says. "And, when law school graduates move first into the market -- especially if they choose to join smaller firms -- it's often impossible to obtain the kind of mentoring once enjoyed by those who preceded them."

The only possible improvement that I could suggest to this amazing service is to consider a podcast format.  That way, lawyers could pop those presentations onto an MP3 player and listen to them over and over again en route to work or at the gym or while waiting in court.   But even as a computer-based service, this project is amazing.   Thank you to the Texas Young Lawyers division for thinking as big as...the state of Texas!

Posted by Carolyn Elefant on February 28, 2005 at 07:21 PM in Ideas & Tips | Permalink | Comments (2) | TrackBack

Supreme Solos

October marks the Supreme Court's return to the bench after summer recess.  But for the past four years, it's also marked the Supreme Court group admission of roughly thirty solo attorney from all over the country and members of the ABA's Solosez  listserve.  The group event was devised by Maryland solo, Terry Berger who continues to organize it each year.  ABA Journal writer Meg Tebo describes the 2004 swearing in ceremony in this article, Admit One, ABA Journal (February 2005).

I  was fortunate enough to be part of the first group admission back in October 2001.  The experience of meeting my fellow solos from all over the country and standing a few feet before the nine justices for the swearing in gave me a sense of belonging to both the lineage of attorneys who took that oath before me and to the "firm" of solos standing beside me.  (of course, I should note that despite these warm feelings, I did cringe during the swearing in itself because I could hear my then two year old, who'd been banned from the chamber, screaming audibly all the way down the hallway)  Even if you think that you may never argue a case before the Supreme Court, if you should experience the in person swearing in process if you ever have the opportunity.

Posted by Carolyn Elefant on February 28, 2005 at 06:53 PM in News | Permalink | Comments (0) | TrackBack

What's Worse - A Lying Lawyer or A Stupid, Greedy One?

In this bizarre story, Attorney Punished for False Promises, Adam Kovac, Daily Herald (2/26/05) concerning a disciplinary action brought against attorney Cynthia Sutherin who duped her co-workers into joining what turned out to be a fictitious law firm, I couldn't help wondering whether the wrong attorney had been charged.  After all, if  Sutherin's conduct, i.e., her lack of truthfulness, would disqualify her from legal practice, why shouldn't the other attorneys' conduct, i.e., failure to engage in due diligence before quitting their jobs to join Sutherin's firm, disqualify them from practice as well?

According to the article, here's what happened.  [Editor's note - we have not yet been able to access the underlying opinino] Cynthia Sutherin, formerly an attorney in the Kane County Public Defender's Office told colleagues that she had $5.2 million to fund her new law firm and had procured contracts with two cities to prosecute misdemeanors.  Also according to the article, Sutherin promised colleageues to salaries and expensive cars in exchange for coming on board.  When the firm that Sutherin had described failed to materialize, she claimed that she'd been diagnosed with cancer which prevented her from going through with starting a firm.

Though the article doesn't so state, I'm guessing that Sutherin's disgruntled colleagues turned her into the bar.  The disciplinary arm of the court recommended a two year suspension but is allowing Sutherin to work as an attorney while she remains on probation and receives counseling and complies with other conditions of the court order.

I have to admit that I'm not quite sure how Sutherin's conduct reached the disciplinary level to begin with.  When employers want to make hires, we often exaggerate - for example, if I want to hire a law clerk, I'll focus on the interesting and exciting matters that my firm handles and avoid details of the grunt work that a clerk will likely receive.  Now, Sutherin's exaggerations appear to have been outright lies - but where do lawyers cross that line from puffery to falsehood?  And why should the the bar draw that line anyway in situations where clients aren't involved.  Personally, I view bar intervention as warranted only where an attorney's lies in a non-client context are of such a pathological nature or comprise part of a constant pattern of deception that they can be used as evidence that the attorney is so prone to dishonest conduct that he or she would eventually do harm to a client. 

But here's my real beef.  If dishonesty, outside the context of an attorney-client relationship is grounds for disbarment, why isn't greed and incompetence?  After all, what were those lawyers who left their job thinking when a former public defender claimed to have $5.2 million to start a firm?  Did those lawyers think it was a wise business move to work for an attorney who offered to buy them them BMW's rather than reinvesting the money back in the firm?  Did the lawyers ask whether Sutherin had a business plan for further growth of the firm or office space or even a website?   Were they at all concerned that a former public defender who I'm assuming had no previous experience running a law firm would be capable of launching a practice that would succeed from the start?   Did they try to negotiate some kind of written employment agreement?   At best, the duped attorneys were guilty of simple incompetence in failing to protect their own interests and at worst, of allowing the lure of fancy cars and high salaries to obscure their good judgment.  Surely, we don't want that kind of attorney in practice any more than a dishonest one.  So why weren't those attorneys subject to discipline also?

As a final note, if you read between the lines (something that we at MyShingle do for you!) this article reveals an important lesson for attorneys starting out on their own.  As you investigate your options in solo practice, you may be confronted by unscrupulous attorneys who'll promise all kinds of overflow work if you rent the pricy office in their suite or  will offer you a "sure thing" contingency (in exchange for a 20% referral fee) that turns out to be a dog.   Examine all of the possibilities that come your way as diligently and thoroughly as if you were doing it for your client.  If an opportunity sounds too good to be true - as was the case here - sadly, it probably is. 

Posted by Carolyn Elefant on February 26, 2005 at 02:58 PM in Ethics & Malpractice Issues | Permalink | Comments (0) | TrackBack

Elder Law - A Niche Practice

Matt Homann at The Nonbillable Hour had this recent post about the potentially emerging field of Retirement Services (which might range from errand running services for older people, consulting on new career opportunities and fund management and legal services) to address the needs of the country's older population.  Along those lines, here's an article, Elder Law Is Soaring as Boomers Age, Erica Sagon, Arizona Republic (2/22/05) that discusses the fast growing field of elder law.  As the article reports:

Elder lawyers, as they are called, are among the fastest-growing groups of legal specialists.The reason: In the coming decades, more than 70 million baby boomers will flood the legal system. The rapid rise of the elderly population will bring about a surge in issues involving guardianship, conservatorship and planning for long-term care. Other cases involve financial exploitation and negligence and abuse at nursing homes.

Attorneys will handle many clients who seek out attorneys on behalf of their aging parents.

Elder lawyers should expect their caseload to multiply, said Laury Gelardi, president of the National Academy of Elder Law Attorneys, based in Tucson.

"There is going to be more work than all the attorneys together can handle," Gelardi said.

In particular, Arizona is described as "a hotbed" for elder law because of its reputation as a destination for retirees.  But even if you don't practice in a state like Arizona or Florida, with a large senior population, investigating elder care law as a practice area may prove worth your while.

Posted by Carolyn Elefant on February 26, 2005 at 01:27 PM in Practice Areas | Permalink | Comments (0) | TrackBack

Tips for Leaving Solo Practice

There's plenty written - both at MyShingle and elsewhere - about the right way to start a law practice.  But there's also a right way to close one down when a solo decides to move on to another position.  The attorney described in this article, State details misconduct charges, Rick Hepp, Star Ledger (2/23/2005) took the wrong approach when she continued to run her private law practice while employed as chief of staff for a New Jersey State Commerce Commision.  The attorney, Lesly Deveraux, has now been indicted for misconduct, theft and various other charges.

According to the article:

[Deveraux]  carried on her private law practice from her state office, and even hired her former law secretary to a $45,000-a-year state job to help handle her clients, state prosecutors asserted yesterday...[P]rosecutors said Devereaux had her state-paid secretary do everything from personal shopping and picking up mail to drafting legal documents and working on real estate transactions for her law practice.

"Instead of simply leaving that practice, she actually hired that secretary as a public employee and paid her illegally with commerce funds," said Deputy Attorney General Robert Czepiel. The secretary has agreed to cooperate with authorities investigating the case.

Defense attorney Walter Timpone denied during the hearing that Devereaux did any legal work beyond finishing a few cases that she had listed in her disclosure forms when she took the state job. He also claimed prosecutors were exaggerating when they said Devereaux's use of the secretary cost taxpayers $90,000.

When leaving solo practice, particularly for a state position, close out or transfer casefiles before you leave.  The money you'll forego in giving up the cases is far less than the potential liability you might face if you don't.

Posted by Carolyn Elefant on February 26, 2005 at 01:11 PM in Ideas & Tips | Permalink | Comments (0) | TrackBack

Change of Pace

Hey readers, I'm dispatching this post from a computer at the Washington College of Law Library of American University in Washington D.C.  I'm posting from here just to show that I can but also to make this point.  For solo and small firm lawyers, the law library can serve as an antidote to the isolation and loneliness that many of us experience toiling alone in a home office or behind closed doors in an anonymous suite.  Even if you don't talk to anyone while you're here (and perhaps you're better off not, as I've been hit up for legal services by some pretty odd ducks), you're surrounded by people with purpose - students scrambling to get a paper in on time or strutting about in business attire for the first time, en route to a job interview or moot court.  Up in the cafeteria, I might run into law faculty lunching with spouses and small children and daydream about whether academia might be a preferable career option (assuming of course, that a practicing attorney who was never on law review could ever be hired to begin with!)  Taking a break, I browse the stacks and the law reviews, seeing what new ideas are taking hold or wondering why some of the articles were ever written at all.  Sometimes it's a wonder that I ever get any work done here what with all the distractions but at some point, the urgency kicks in and my malaise slips away.  Being in the midst of all of these young people eager to start or law professors embedded in scholarship and remembering the excitement and promise that I felt back when I was a law student myself (16 years ago, now) rejunivates me enough to get back to my day job (just can't be blogging all the time).  That's where I'm headed now.

Posted by Carolyn Elefant on February 25, 2005 at 10:17 AM in MyShingle Solo | Permalink | Comments (0) | TrackBack

Dennis Kennedy Sees Prospects for Small Firm and Solo Lawyers Better Than Ever

With so many large firms starting to jump on the blog bandwagon, I often feel discouraged about the prospects for solo and small firm lawyers' ability to keep up.  After all, though we may be experts in our practice area and have knowlege to share, we simply don't have the associate manpower of a larger shop.  Dennis Kennedy has put many of my concerns to rest in this post, Is There Still room for Small Firm or Solo Lawyer Blogs?  Dennis comments that in the blog world, personality and voice account for much - and solo and small firm lawyers have more latitude to let personality shine through than at the larger shops.  Also, Dennis notes that many large firm blogs have a tendency to post many times a day, thus inundating readers without selecting content.  This detracts from the blog's value.  Finally, Dennis isn't convinced that large firm blogs are here to stay any more than the last trend, the quarterly newsletter.  Dennis offers plenty of other observations, so be sure to read his actual post on this topic if you're thinking about diving into the blogosphere.

Posted by Carolyn Elefant on February 23, 2005 at 08:20 PM in Tech & Web | Permalink | Comments (1) | TrackBack

Small Firm Does Pro Bono

Bob Ambrogi reports here on the pro bono work of a two attorney firm, Moran and Gottlieb and links to this story about the firm in the Poughkeepsie Journal.  Subsidizing their pro bono work with revenues from paying clients, Moran and Gottlieb maintain a free telephone hotline to field questions from anyone who cares to call them.   And once a week, Gottlieb dispenses free legal advice at a local homeless shelter.   Moran and Gottlieb's efforts should inspire other solo and small firm lawyers to do our share as well.

Posted by Carolyn Elefant on February 23, 2005 at 08:11 PM in Pro Bono | Permalink | Comments (1) | TrackBack

Online Litigation Tips

Via Jim Calloway comes a link to  Dave Swanner's guest post at Legal Underground entitled "Twelve Ways Technology Can Make You A Better Trial Lawyer."  There's some great advice here for both new and seasoned attorneys who have full time litigation practices or just dabble in trial work from time to time.

Posted by Carolyn Elefant on February 23, 2005 at 07:56 PM in Ideas & Tips | Permalink | Comments (0) | TrackBack