You know what...this judge WAS a few fries shy of a Happy Meal
Ever since I've started my site, I've blogged about situations where, in my view,
judges have gone way over the line in sanctioning attorneys for conduct, such as sending a lawyer to jail for refusing to apologize or showing up late for a hearing. But typically, these sanctions have issued against solo and small firm attorneys.
But outrageous judicial conduct isn't any less outrageous when it's directed against our biglaw colleagues. And that's why the scenario described in this,
Lawyer's 'Super-Size' Gaffe Costs Him Client and Possibly Right to Practice Before Fla. Court (law.com 5/31/07) really ticked me off. According to the article, William Smith, a partner at large, Chicago based law firm of McDermott, Will & Emery commented to Judge Laurel Myerson Isicoff during a hearing Bankruptcy Court for the Southern District of Florida that "with all due respect, you're a few french fries short of a Happy Meal." The relevant portions of the transcript, available here at David Lat's Above the Law show that the judge didn't say anything other than "proceed counsel" at the hearing. But subsequently, issued a Show Cause order asking Smith to demonstrate why his pro hac vice status shouldn't be revoked in light of his remarks. The judge also denied Smith's motion, and Smith's client has since replaced him with a local firm.
The judge's decision is wrong on so many levels that I can't even begin. First, if she was offended by the comment at the hearing, she should have said so right away and given the attorney a chance to apologize. To me, this smacks of a set up. Second, quite frankly, this is overkill. Requiring a lawyer to respond to a show cause order and convening a hearing uses time and resources. Why couldn't the judge simply have slapped the lawyer with a monetary sanction right on the spot? At least, it would have ended the matter. Third, did the judge really need to copy every other judge on the bench with the show cause order? To me, that's simply vindictive. After all, many judges may have taken the remark in stride or come back with a snappy quip from the bench in response.
I also question the judge's motives. I wonder whether she'd have reacted the same way had a local attorney rather than one from an out of state, biglaw firm made the same remark. And as a result of her action, the client did channel its case to a local firm. As a solo, that should give me pleasure (since I often serve as local counsel), but it doesn't. If I get business, I want to win it fair and square - not because local judges are mistreating out of state counsel.
The Unbearable Weightiness of Bar Sanctions on Solos
One aspect of solo practice that's commonly overlooked is the impact that a suspension can have on a solo's career. Over at Legal Profession Blog, Mike Frisch notes that even a bar suspension of a short duration can kill a solo's practice because he or she may not have colleagues who can assume control of the case. By contrast, lawyers employed at a firm can turn matters over to their partners while they serve their time.
Many probably assume that a lawyer who's done something bad enough to get suspended doesn't deserve a second chance to practice anyway. I disagree. In fact, the suspensions that are actually harshest are those of short duration, where the conduct was not terribly bad, but the lawyer must shutter his practice during the suspension, and then try to ramp it up again. And, sometimes bars suspend lawyers where they may have made a simple mistake.
UPDATE A reader sends this link to the sad story of Ed Slavitt who received a 6 month suspension for writing a bar reference that didn't tell all about the applicant. Is that worth losing your legal career? You tell me....
Are ethics rules biased against solos? Call me a conspiracy theorist if you want, but there's proof....
Back in 2003, I wrote a post (not presently available online) entitled the Bar's Dirty Little Not So Secret Secret. The article highlighted how most bars' disciplinary systems disproportionally target solos, when there's plenty of incompetence to go around. But there's a problem far worse than disparate enforcement - and that's disparate impact, i.e., where the very design of the bar rules unduly burden solos.
What set me off on this post was this article in the ABA e-journal (5/21/07) discussing ABA Formal Opinion 06-444 (Sept. 13, 2006) which allows law firms to condition an attorney's retirement benefits on acceptance of a non-restrictive covenant. Traditionally, firms are prohibited from forcing lawyers to sign non-compete agreements because non-competes interfere with the clients' unfettered right to a lawyer of their choice. As the article describes, the ABA Ruling creates a difficult choice for retiring attorneys, who must forego retirement benefits if they choose to open their own practice (presumably where they compete with their former firm or where they take firm clients) Because I wasn't able to read the opinion (the ABA stupidly charges for this kind of stuff) I can't tell how it would impact older biglaw attorneys like those at Sidley Austin who were demoted when they ceased to make enough rain - after all, they too might decide to start their own firms, rather than face the embarrassment of staying on where they're mistreated. Perhaps the ABA opinion is intended to deprive older lawyers put to pasture by big law firms of the option of starting their own practice as well.
As I pondered the ABA decision further, I realize that it's not an isolated case. To the contrary, there are a myriad of bar policies that quite simply, make it more difficult to go solo, or to succeed in solo practice.
Consider for example: the Maryland bar's rule prohibiting lawyers from joining BNI or similar type referral groups, , while permitting large firm lawyers to create
affinity practices, which are the same concept as a referral group, with a fancier name. What about the extensive restrictions on advertising, such as the
New York Bar's rules which could restrict lawyers' ability to blog imposes other limitations on lawyer advertising or other advertising rules "http://www.myshingle.com/my_shingle/2006/01/ohio_bar_wont_a.html"> (such as in Ohio) or Nevada ;the DC bar's gall in even
suggesting that a solo lawyer is not a bonafide "law firm", prohibitions on firms using virtual associates from holding themselves out as a larger firm and rules against multijurisdictional practice that
prevent solos not licensed in a state to work as a lawyer in that state when they only handle matters in the jurisdiction where they're licensed.
As associate attrition increases at law firms, solo practice is an attractive option. But rather than try to retain lawyers by making biglaw a more inviting place, large firm lawyers, which dominate most bar associates and have substantial influence over ethics regulation, are simply making it more and more difficult to succeed as a solo. Call me a conspiracy theorist is you want - but if you do, you need to tell me what explains the bar rules that I've just described that disparately impact solo and small law firms.
Find Out If Someone is Really A Lawyer
These days, most bar associations make information about a lawyer's bar membership publicly accessible, so that consumers can ensure that the lawyer they've retained is actually licensed to practice. But these bar data bases are important for lawyers. For example, perhaps you're suspicious that your opposing counsel isn't licensed in the court where he's filed or defended a suit. Or you'd like to refer a case to a colleague, but would like to confirm that she's in good standing.
Now, there's an easy way to find an attorney's bar status - at least in the 40 states that retain an online database. Maryland attorney Terry Berger recently created the site, Is He Really A Lawyer , which serves as a convenient portal to each bar's attorney membership site. It's a simple site, but it will quickly direct you to the information you need. And while you're there, why not check your online status, just to make sure it's up to date.
For All DC Area Attorneys and New Law Grads: DC Bar Event re: Contract Lawyering
Contract Lawyering and Outsourcing: Career Options
Start: May 24, 2007 Thursday 12:00 PM
End: May 24, 2007 Thursday 1:30 PM
D.C. Bar Law Practice Management Section; Courts, Lawyers and the Administration of Justice Section; Corporation, Finance and Securities Law Section; Government Contracts and Litigation Section; Administrative Law and Agency Practice Section; Health Law Section; and Antitrust and Consumer Law Section
Present a Brown Bag Program (Please bring your own lunch.)
Contract Lawyering and Outsourcing: Career Options for Lawyers, Staffing Alternatives for Firms and Big Benefits for Clients
The legal profession is rapidly changing, with costs of legal services rapidly on the rise. Many lawyers are dissatisfied with law firm life and yearn for career alternatives. And with unpredictable work loads, many firms, from solo practitioners to large firms to corporate clients, seek ways to meet temporary staffing needs without hiring full time employees.
That's where contract lawyering comes in. Our panelists will provide varied perspectives on contract lawyering, and cover topics such as types of contract opportunities available, whether contract lawyering is career suicide, how a lawyer interested in providing contract services can find opportunities, rates for contract lawyers, outsourcing within the US versus overseas and ethics issues, such as marking up the cost of contract lawyers and bar membership requirements and much more.
D.C. Bar Conference Center
1250 H Street NW, B-1 Levell
Washington DC 20005
Sections Office 202-626-3463
Michael DJ Eisenberg, Law Offices of Michael Eisenberg (Contract Lawyer Perspective)
Jeffrey Weinstock, VP Operations, Ajilon Staffwise Legal (Recruiter Perspective)
Christy Stouffer (non-lawyer) Steptoe & Johnson (Law Firm Staffing Perspective)
Carolyn Elefant, Law Offices of Carolyn Elefant (moderator)
Law Students $5.00
Section Members and Subscribers $15.00
Government and Nonprofit employees $15.00
Non-Section Members $20.00
Visit the DC bar website, at DC Bar to RSVP. Hope to see you there!!
Do Something You Stink At...And Become A Better Lawyer
Yesterday, I spent a beautiful Saturday outdoors, helping to build a house with Habitat for Humanity as part of an Energy Bar Association pro bono service project. I have to admit that I didn't seek this project out: my decision to participate was a spur of the moment response to an email that came through my inbox, and was motivated not by true benevolence, but rather, by a realization that I haven't attended many energy networking events in a while and this presented a convenient opportunity. While I can't say that I made many business connections yesterday (it's hard to talk shop when you're trying not to hammer your finger, plus, energy lawyers only comprised about a third of the partipants), nonetheless, I came back with something better - a little bit of color on my pallid lawyer's complexion, a few good lessons learned, and a lot of satisfaction, as I'll describe.
In the past, I've done my share of pro bono for indigent clients, primarily throught the Washington Legal Clinic for the Homeless, representing them in public benefits cases, eviction hearings (I kept two families in their homes), discrimination actions. I even helped crack a scam by a vocational school that would sign up homeless people for the program and student loans. The school would take the money and either fail to follow through on the training promised, and wouldn't let people rescind after one or two classes, leaving the homeless people with insurmountable credit problems and the school owner with a fancy lamborghini (it's funny the things you remember...). At the same time, I'd always ruled out other service projects, like serving food in soup kitchens or cleaning up a dirty river constituted true pro bono because they didn't make use of my legal skills. After my experience yesterday, I still believe that my time spent on pro bono is most valuable when I provide legal services, because that's where my competency lies - but just because I'm best at providing legally related pro bono, doesn't mean that I need to limit my service to law projects only.
Of course, this doesn't hold true for all lawyers. As I saw yesterday, some lawyers have skills, like house building, that extend beyond the law. I am not one of them. As a general matter, I'm not much of a crafty person, and not surprisingly, I was fairly inept at yesterday's task - building the frame for a house. I bent nails, broke them trying to remove them, misaligned the pieces of the frame and didn't even know the proper terminology for the various components. And needless to say, I was slower than everyone, embarrassed and frustrated trying to get my nails into the board while the others on the team stood around waiting. Fortunately, the Habitat people were incredibly patient, waiting quietly as I finished my tasks, and encouraging me along.
On the way home, I got to thinking that the way that I felt on that construction site must be how many of our clients feel in the litigation process. Like me, our clients our competent people in their own right, thrown into a world which is foreign to them and which they don't comprehend. Just as I didn't undertand the importance of a perfectly aligned triple board, and grew impatient about having to always stop and even it out, most of our clients don't understand why they need to respond to an interrogatory in a certain way, or answer a depo question or not talk to so-and-so or why the process takes so long. So these clients call or email to ask questions or complain...sometimes a lot. And though we often mock these clients, or grow impatient with them, we sometimes forget to consider that perhaps, they're just struggling to grasp a process that's second nature to us lawyers.
After yesterday, I realized that most legal procedures can make even the most capable of our clients feel stupid, just like building a house made me - a lawyer with 19 years of experience - feel like an utter clod. We should remember that the next time we get impatient. And every so often, we should go out and do something publicly at which we're completely inept, be it constructing a house or swimming laps or taking a knitting class - to remind ourselves of how our clients feel, and to figure out ways that we can help them through.
Seventh Circuit and Wikis
The Seventh Circuit just introduced a really neat tool that I posted on at Legal Blogwatch: a wiki that judges and practitioners can update with helpful tips and advice on court practice. The wiki will help Seventh Circuit newbies, but as I wrote at Blogwatch, more experienced lawyers can use the wiki for marketing. Let's say you're aware of a strange quirk in the Seventh Circuit rules. Post it on the wiki, with a link to your website and blog. Other lawyers visiting the site might come to view you as an authority, and might contact you with a referral or a question, which could lead to paying work. And imagine how much prestige you'd earn if a judge like Posner or Easterbrook jumped in with a "me too!" to your comment. Perhaps you could even become the next Howard Bashman!
Will be resuming posting shortly
Readers, I just looked at the date of my last post, and I can't believe that I've gone a week without posting. This is a busy time with work still coming in. And I'm polishing up the final draft of my book which should be out by the end of the year. The book has taken me nearly three years to complete (yes, that's a little embarrassing, but I have an annoying habit of actually finishing much of what I start...eventually). And even though my words are frozen on the page, the legal profession hasn't. So now, as I go back over the older material, I'm feeling a little like Heisenberg as I scramble to describe certain topics, only to feel the ground shift as I'm writing.
Once this project is off my plate, there'll be some changes at MyShingle as well. We'll be upgrading, big time, getting the Guide up to date and bringing my old archives from December 2002 to November 2004 back online. I'm even hoping to to hire one or two people for the project, so if you're a student with some time on your hands, a passion for blogs and interested in a little extra cash, feel free to drop me an email here - firstname.lastname@example.org
I am hoping to resume regular posting in the next few days, but until then, you can visit the archives if you're interested in earlier posts, or read me over at my other beat at Legal Blogwatch. And read the other solo blogs that I mentioned back here, as well as those that have come out since - Susan Cartier Liebel's How to Build A Practice; Sheryl Sisk Schelin's Inspired Solo, Solo in Chicago, Chuck Newton, Rick Georges' Solo Lawyer and Dreams of a Solo. That should keep you busy until my return!