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Archive for the ‘Adventures in Lawyering’ Category

Not Every Lawyer Can Bill 3,000 Hours in a Year. Most Lawyers Shouldn’t

A lawyer who got axed from his firm for allegedly failing to make his billable hour requirements has filed suit against his former firm, claiming they essentially required him to commit billing fraud:

A California lawyer who says he was fired from his law firm because he couldn’t meet a quota requiring 3,000 billable hours a year has filed an employment bias suit over his ouster.

The former associate, Richard Unitan, claims the unrealistic requirement forced lawyers to lie about their hours, the Los Angeles Daily Journal reports. Unitan, a Riverside litigator, claims he was essentially fired for not committing billing fraud.

A 3,000 hour billable requirement would require working about eight hours a day, every day of the year. Most firms require no more than 2,100 billable hours a year.

They say that for every hour a lawyer works, they can only bill 30-45 minutes of that time. To bill 3,000 hours would therefore require spending 4,000-6,000 in the office every year, or 11-16 hours per day. (I’m not sure who “they” are, but they talk a lot.)

Some lawyers can probably take to that lifestyle with gusto. Other lawyers might enjoy exercise, the arts, food, or having a family. Some lawyers might aspire to be an interesting human being outside of the context of their periodic review with the managing partner of their firm. Some lawyers might aspire to spending some of the waking hours of their day not tracking their time in 6- or 15-minute increments.

But then, most lawyers don’t get to work at the big fancy law firms anyway.

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BigLaw Partner Leaves Firm to Write Novel, Rediscover his Family; Disses his Coworkers on the Way Out.

Riding away....Every time a lawyer leaves the practice of law and somehow manages to make the news, I take notice. As  I am still slowly extricating myself from the brilliant boondoggle that has been my legal career, the paths that other lawyers take to the exit is always interesting to me. From the ABA Journal, a litigation partner at Sidley Austin in Chicago has decided to take his leave of the firm to write a novel and, you know, live his life. He also left a few parting zingers:

I have realized that I cannot simultaneously meet the demands of career and family. Without criticizing those who have chosen lucre over progeny, let me just say that I am leaving the practice of law.

My epiphany may have come a bit late as my youngest child—I believe his name is Erik—is 24. But as I always said after missing a filing deadline, better late than never.

I have made friendships at Sidley that I will treasure well into the first quarter of 2012. But a career based on the perception of untapped potential, rather than on actual production, has a limited shelf life. I frankly would have expected management to have caught on years ago. I trust that my longevity will serve as a beacon of hope for underperforming lawyers of all ages. No need to name names: you know who you are.

As the saying goes (roughly stated), no one looks back on their life and wishes they had spent more time at the office. I’d be willing to wager that at least some people wish they had spent less time at the office and gotten to pick at a few co-workers. To this gentleman scholar, I say bravo. You are my kind of grumpy.

(Photo credit: scotsxc on stock.xchng)

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Would you like fries with your legal advice?

Strange story, awesome quote:

If you meet your lawyer for the first time at McDonalds and pay a $36 retainer fee to get your kid transferred out of jail to a psychiatric hospital, you’re probably not dealing with a real lawyer.

via Practical Paralegalism: One Sign You’re Not Dealing with a Real Lawyer.

(h/t Geri Dreiling)

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Bald lawyers, unite!

From MyBaldLawyer.com

From MyBaldLawyer.com

Dangit, why did I never think of this???

If you are injured and in need of a lawyer, Chandler Mason hopes you will remember his bald head.

Mason, an Atlanta personal injury lawyer, is differentiating himself in a crowded field with billboards picturing himself and promoting his website, MyBaldLawyer.com.

I once billed myself online (in the pre-social media era, before I was actually marketing myself for business purposes) as the “Official Bald Guy of the New Millenium.” It was pretty lame. I can’t even find it on the Wayback Machine anymore. This guy is doing it right.

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A new manifesto for lawyers? Maybe…

Rachel Rodgers, the self-proclaimed 21st-Century Lawyer for Generation Y Entrepreneurs, has put out a “21st Century Lawyer Manifesto.” It proclaims a new ethic, or aesthetic, or something, for the newest generation of lawyers. I think this mostly includes the ones who came of lawyering age in the era of social media and no longer reasonably expecting to have a high-paid legal job upon graduation. The manifesto has 9+ elements (the “+” will be clear soon enough):

  1. We are a diverse group of people that come in all shapes, sizes, t-shirts and tattoos.
  2. We embrace our weirdness.
  3. We will not let being lawyers prevent us from being business savvy.
  4. We will not let our past with tradition rob us of a future with innovation.
  5. We will utilize technology in all of its glorious forms.
  6. We value actual morality over “ethics” rules.
  7. We understand that the true value of money is determined by what it costs us to make it.
  8. We will not live in fear.
  9. We recognize our duty to do epic sh*t now.
  10. [You tell me.]
The lawyer of the future?

The lawyer of the future?

See, #10 is a fill-in-the-blank. It’s a partly-DIY manifesto, making the whole thing delightfully (or obnoxiously, depending on your point of view) meta.

It’s worth reading the whole thing to get the nuance of each element. Overall, I absolutely support utilizing new technologies, rethinking some concepts of “ethics,” and generally shaking up the legal profession. I have no doubt that there will be vehement and altogether predictable retorts from certain lawyers about how unrealistic and irresponsible these newbie lawyers are being.

I see several problems with this manifesto.

For starters, I’m all about being “weird,” but not about being “weird” for weirdness’ sake. Maybe I’ve got that item on the list all wrong, but as lawyers we have a job to do and a broader legal system to represent. While the current system seriously eschews outside-the-box thinking in favor of a rather lockstep approach, that did not happen overnight. In truth, most outside-the-box ideas suck (cf. Sturgeon’s Law). As lawyers, for many of our clients, the stakes are quite high (livelihood, custody of children, liberty, etc.) Clients need to know that we are either using methods that are time-tested, tried, and true, or that we have worked out these new techniques and have the utmost professional faith that they will work. Otherwise, the hypothetical outside-the-box legal tactic doesn’t work, the client gets angry at the lawyer, the lawyer gets sued for malpractice and/or gets dragged before the state bar, CLE presenters use that lawyer as an example of what not to do, and everything goes right back to the way it was before. Being “business savvy” does not always equal being an effective advocate.

For another thing (and I’m not sure whose problem this is) is that replacing the current ethical regime with a broader concept of “morality” sounds awesome on paper. Try it in a contentious divorce case where one spouse wants a peaceful split and hires a newfangled “moral” attorney while the other spouse borrows $25K from a family member and hires the sharp-fanged divorce lawyer who keeps opposing parties’ extremities as trophies. I’ve dealt with divorce lawyers who, while they may be wonderful people with their families at Thanksgiving dinner, seem constitutionally incapable of even recognizing opportunities to peaceably resolve legal disputes. Decades in the nastiest divorce trenches will do that to a person. Long periods of time hearing about the worst of the worst divorce cases can sometimes make judges pretty cynical too. Not all divorce lawyers and family court judges are like this, of course, but a lawyer seeking to inject a bit of “morality” into the process should expect to get chewed up and spit back out, minus a few extremities, more than a few times.

The biggest threat to any kinder, gentler model of lawyering, then, comes not only from other lawyers who don’t subscribe to that ideology, but also from these lawyers’ own clients. Most people don’t have a clear understanding of how the legal system works (I blame lawyer TV shows). The system may be the best one conceived by humanity to resolve disputes, but it quite often sucks. It is inefficient, often unfair, and often mind-bogglingly counter-intuitive.  Clients expect justice, and they do not always understand how difficult (and expensive) true justice is to achieve. Many lawyers go for the illusion of justice through aggressive litigation, and that has become the standard model. Do not think for a second that this type of lawyer would hesitate to pounce on a newly-moral lawyer for any advantage available.

Are these reasons not to try to change the legal profession in ways that would quite possible make it fairer, more “moral,” and a more enjoyable (or at least less soul-crushing) way to make a living? Of course not. These are noble goals. The thing that “21st Century Lawyers” of the Rodgers model need to understand is that the early adopters of this model may end up martyrs to the cause. Good luck to them.

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Save Sparks’ snark!

The Honorable Sam Sparks
The chief of the Fifth Circuit Court of Appeals has taken Judge Sam Sparks to task for his entertaining, albeit biting, recent orders (h/t Ronald W. Nelson):

Chief Judge Edith Jones of the 5th U.S. Circuit Court of Appeals is not amused. Texas Lawyer obtained a copy of an email she sent to Sparks advising him to think before he writes. “Frankly, this kind of rhetoric is not funny,” Jones wrote. “In fact, it is so caustic, demeaning and gratuitous that it casts more disrespect on the judiciary than on the now-besmirched reputation of the counsel.”

The rhetoric, Jones said, suggests that Sparks is “simply indulging himself at the expense of counsel” or that he is fighting with the lawyers. “No judge who writes an order should allow such rhetoric to overcome common sense,” she wrote.

It may very well be the case that the “kindergarten party” order was the result of residual frustration over the sonogram lawsuit, and that he was making an example by picking on two lawyers out of the many thousands who use the courtroom to resolve relatively inconsequential disputes. Perhaps that is not, in the grand scheme of things, appropriate for a Presidentially-appointed member of the federal judiciary.

But dangit, it entertains me, and isn’t that what’s really important?

Posted with WordPress for BlackBerry.

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In praise of Austin’s cleverly snarky jurists

The Honorable Sam Sparks

It is unwise to anger Judge Sam Sparks

Law is a conservative profession, in that it is rarely given to huge leaps of fancy or whimsy. English common law has given us a system based on precedent, where the challenges and disputes of the present are resolved using the solutions of the past. Innovation comes slowly, and the writing tends to be both precise and ponderous. No one reads legal briefs or law journals for the lulz.

Every so often, though, a judge comes along who challenges the notion of a staid, unflappable jurist. Today, I take a moment to salute the Honorable Sam Sparks, U.S. District Judge for the Western District of Texas, Austin Division. (Full disclosure: I am licensed to practice in the Western District of Texas, I think, but I do not have any cases in Judge Sparks’ court and do not intend to file any. Therefore, there is really no need for full disclosure. Never mind.)

Lawyers who practice in federal court in Austin generally know that Judge Sparks does not abide tomfoolery in his courtroom. Despite conventional wisdom, every so often lawyers who should really know better decide to bring questionable motions in his court, and his responses and resulting orders ought to be forever recorded in the annals of legal history.

Above the Law, as with so many stories, has a good overview of some Sparks gems. In 2004 he compared bickering lawyers to kindergarteners, and in 2007 he issued an order in rhyming couplets, complete with this conclusion:

There will be a hearing with pablum to eat

And a very cool cell where you can meet

AND WORK OUT YOUR INFANTILE PROBLEM WITH THE DEPOSITION.

My personal favorite story out of his courtroom comes from recent news and involves litigation over Texas’ new ultrasound-before-abortion law. The Center for Reproductive Rights filed a lawsuit in federal court in June seeking to block the new law from taking effect (read the original complaint). The defendants in the case are the individuals and agencies that will be charged with enforcing the new law: David Lakey, M.D., Commissioner of the Texas Department of State Health Services; Mari Robinson, Executive Director of the Texas Medical Board; and David Escamilla, County Attorney for Travis County. Seems pretty straightforward–group opposes a new law, so sues the state officials in charge of enacting it–and uncontroversial, at least procedurally, right?

Oh, silly, silly reader(s)….

Have you forgotten that this is Texas?

Not content to allow this lawsuit to proceed in the same fashion as any other lawsuit filed in America, the two sponsors of the bill, Sen. Dan Patrick, R-Houston, and Rep. Sid Miller, R-Stephenville, asked leave of the court to file amicus briefs supporting the law. On August 9, 2011, Judge Sparks said no (PDF):

Both parties in this case are well-represented by competent and diligent counsel, and neither they nor this Court needs assistance from Senator Patrick or Representative Miller–particularly when much of their “assistance” is nothing more than thinly-veiled rhetoric. This is a federal lawsuit about the constitutionality of a statute, not a soapbox for politicians or a sounding board for public opinion. The Court is confident counsel in this case can protect their clients’ interests all by themselves.

Judge Sparks did not even have to make that rhyme to make it sting. A mere three days later, on August 12, he similarly rejected an attempt by other Texas legislators to intervene in the case (PDF):

[C]ounsel for the parties are more than capable of advocating for their clients’ positions without outside input. This is especially true where, as here, that input comes in the form of, among other things, commentary by legislators on “the clear legislative intent of H.B. 15′s severability clause.”

If the severability clause is as clear as the Representatives indicate, their interpretive assistance will not be required. And if it is not, it would be unhelpful, if not improper, for the Court to look to statements made by a subset of the Legislature, in a document prepared for the purposes of litigation, to determine legislative intent. (Citations omitted)

Thankfully, that put an end to the chicanery, and the case has been able to proceed according to normal court procedures. Just kidding! San Antonio attorney Allan Parker, president of the Justice Foundation (I’m not linking to them) also requested leave to intervene in the case, and he decided to do a little show and tell with his motion (specifically a picture of a “first-trimester aborted child” according to his own list of exhibits.) On August 23, Judge Sparks took his polite gloves off and went right to it (PDF, of course):

The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically-charged media circus. As any competent attorney could have predicted, the Court declines the latest invitation as well.

However, the Court is forced to conclude Allan E. Parker, Jr., the attorney whose signature appears on this motion, is anything but competent. A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so unprofessional as to file such exhibits unsealed. A competent attorney who did these things would be deliberately disrespecting this Court and knowingly shirking his professional responsibilties, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.

House of detention, photo by Jascha Hoste

Not pictured: the actual holding cell at the federal courthouse (photo by Jascha Hoste)

I have no involvement in this case at all, and yet my stomach did a few lurches reading that part of the order because I can imagine the horror of having a federal judge that mad at me, and the possible implications of that. Yes, Judge Sparks called the man incompetent, and he did it a lot. Moral of the story: if you come into Judge Sparks’ courtroom with weak arguments that he has already dismissed, you will not leave with your dignity. You might not leave with your bar card. You might not leave as financially whole as when you arrived. You might not leave at all.

Okay, that last part was an exaggeration. You’ll get to leave eventually.

This week, we have a different case (h/t Mike Johnson), involving two attorneys who may have just done something really dumb, or may have had the misfortune of doing something kind of dumb with a judge fresh off of his Allan Parker-fueled disdain for shenanigans in his courtroom. Either way, the hammer dropped on attorneys Jonathan L. Woods and Travis Barton, who have been invited ordered to attend Judge Sparks’ “kindergarten party” on September 1 in his courtroom, covering topics such as how to properly plan and schedule depositions and how not to waste a federal court’s time for being “unable to practice law at the level of a first-year law student.”

Courts have a pretty specific purpose, and they have limited resources to achieve that purpose. The purpose is to resolve disputes, and to do so as efficiently as possible. Many Austin lawyers have horror stories about Judge Sparks (and no, I’m not telling any here),  but I applaud the effort to keep idiocy out of the courtroom, and to do it with some flair. I salute Judge Sparks and his brand of don’t-*******-with-me-in-my-courtroom jurisprudence.

That said, I know full well that if I ever argued a case in his courtroom, he would eat me for breakfast and use my bones for toothpicks at lunch. And I’m okay with that.

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Can contract lawyers practice ethically?

A malpractice suit filed earlier this summer by JM Eagle alleges that McDermott Will & Emery failed to adequately supervise the contract attorneys they retained to do document review, leading to privileged documents related to JM Eagle’s case being released. This is one of those cases where reams of scaremongering missives by lawyers hyping the ethical risks of a given area of practice turned out to be correct–e-discovery actually is pretty difficult.

E-Discovery is a discipline.  Far too many attorneys in firms large and small think that e-discovery is something they can do on the side, when they are not drafting motions to dismiss an antitrust class action or preparing to depose a scientist in a patent infringement matter.  Unfortunately, this is simply not true.  Sure, e-discovery is an outgrowth of the rules of civil procedure and every litigating attorney needs to understand the rules.  But e-discovery goes far beyond the rules.  It is one thing to understand that there are different possible forms of production permitted for electronically stored information under Rule 34, and quite another to know how to effectively and defensibly identify, preserve, collect, process, review and produce ESI.  The layers of complexity are many.  Indeed, I would argue that there are multiple disciplines within the field of electronic discovery. (Dennis Kiker)

Photo by stevenafcI’m not technologically adept enough to know what all the different forms of digital or electronic information are, but I know they are many and varied. I am entirely receptive to the notion that this is an area of law practice that anyone could just dabble in. At the same time, be on the lookout for seasoned practitioners trying to scare neophytes away more out of self-preservation than ethical concern. Please note, I am not offering any opinion as to the motive of the above-quoted lawyer, Dennis Kiker. The guy certainly knows his stuff, technology-wise. Lawyers should just proceed with caution, particularly into areas of law that deal with technologies few people really understand.

Another question here has to do with the use of contract lawyers. It’s certainly a boon for the law firms: they save on all the pesky job training and perks, and they can even pay much lower than an associate might take home. They also sacrifice control, in that they may not be able to exercise the same supervision over contract lawyers as they would over their own employees. This is not to say that contract attorneys need supervision per se, but there is a responsibility that lawyers have to their clients to know everything being done for the client on their behalf. A common meme in the legal blogosphere of late has been how outsourcing legal marketing = outsourcing ethics. Outsourcing functions traditionally performed by associate attorneys can also lead to outsourcing of ethics as well. Again, most contractors are probably very professional and responsible, but the point is that the lawyer no longer has final say over how the work is done, and therefore no control over some of the lawyer’s ethical obligations. Note that the contract lawyers in question are only named in the lawsuit (pdf) as John Does.

With this many warnings and ethical pitfalls, it’s no wonder lawyers are so stressed out. To answer my own question posed in the title to this post, of course contract lawyers can practice ethically. the real question is how to apportion the ethical risk among the lawyers involved in a case. The lawyers who use contract attorneys still have to review everything those attorneys do, since their name is ultimately the one on the signature line. The case discussed here allegedly resulted from inadequate supervision.

How do we fix this problem? I’m working on it. Stay tuned.

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Presenting Gregory Berry, who stands aginst BigLaw

Remember that generational clash among lawyers? It’s here. The front line combatant in this conflict is Gregory Berry, a New York attorney who until recently worked as an associate at Kasowitz Benson Torres & Friedman. Apparently he made a few whistleblower-type complaints and engaged in some self-aggrandizement within the firm, and now is no longer employed there, according to Reuters and a lawsuit Berry filed:

Gregory Berry, a former first-year associate at Kasowitz Benson Torres & Friedman, accused the firm of unethical behavior and lying about its work culture in a lawsuit filed on Monday in Manhattan state Supreme Court.

Two partners are also named as defendants in the suit. Berry accuses them of interfering with his job, inflicting emotional distress and trying to thwart his career prospects.

Berry claims he “immediately began doing superlative work” when he started working at Kasowitz last September after attending law school at the University of Pennsylvania.

But he ran into trouble after a few months when he e-mailed partners asking for more responsibility, he said in the lawsuit.

“It has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing and a superior legal mind to most I have met,” his email said, according to his complaint.

He was informed by a partner at the firm that his email had “burned bridges” in the office, and he was fired a few days later, according to the lawsuit.

“There’s simply no room in a big law firm for an intelligent, creative lawyer with real-world experience, and I had to find that out the hard way,” Berry told Reuters.

In the lawsuit, he also said he was fired for comments he made about “possibly fraudulent” billing practices at the firm.

Is Berry out of his “superior legal mind”? Perhaps. Law school produces many innovative and creative legal minds. Big law firms, with their strict business models and general aversion to risk, stifle such innovation and creativity most of the time. I had never heard of Kasowitz before this morning, but a cursory review of the interwebz suggests they have a reputation as a “benevolent dictatorship.” Maybe Berry was fired for threatening to expose dirty secrets, maybe he was fired for having an ego, or maybe it was something else entirely. The truth may or may not come out in his lawsuit. The point is that we have a brand-new lawyer butting heads with his firm’s culture and getting the boot for one reason or another. Bring your own popcorn.

My attempt at creating a fair use graphic

My attempt at creating a fair use graphic

Now that he is free of the corporate yoke of BigLaw, he did what every young attorney who is too smart for the strictures of old-school legal culture should do: he started his own practice. And he did it with a bit of flair: his website states that:

[Berry] graduated from the University of Pennsylvania School of Law and began his legal career at the “big-law” firm of Kasowitz, Benson, Torres & Friedman, where he quickly discovered that the emphasis in “big-law” firms on generating billable hours rather than on applying creativity and intelligence to devising unorthodox and cutting-edge legal strategies left Mr. Berry wasting his talents. Mr. Berry became a lawyer to fight for justice and to use his powers for good. He started this law firm to lend his abilities to clients who need the highest legal talent possible.

Here is a screengrab of that page, in case he has to edit any statements contained therein. I look forward to seeing what “unorthodox and cutting-edge legal strategies” Berry develops in his new position. Just watch out for those pesky ethics rules–they’ll come at you from all over.

I for one welcome this opportunity for NewLaw (I now claim credit for coining that term, even if someone else has the website) to put itself up against BigLaw. The new versus the old.The small versus the big.  The innovative versus the time-tested. Let the battle royale begin.

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So You Want to Go to Law School: the classic movie

“I do not like my Blackberry. I would like to torture it until it begs me to kill it.”

“Science cleared that guy. A lawyer put his a** in prison.”

I soooooo wish I had written this.

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