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Archive for the ‘Lawyering’ Category

Grandpa lawyer doesn’t understand your newfangled technoggoly

I wrote the headline to this post on August 17, 2011, and I saved a draft that only consisted of four URL’s. Honestly, I have no idea exactly where I was going to go with this, but the headline was too, uh, weird not to post. Rather than try to piece together exactly what sort of thesis I was going after almost four months ago, I’ll just link to the articles that so inspired me.

Obviously it was something about older lawyers eschewing newfangled technology.

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see more Lolcats and funny pictures, and check out our Socially Awkward Penguin lolz!

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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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Lawyers as problem solvers

Attorney Mark Baer was recently interviewed by the Pasadena Star-News about the role of lawyers:

“Law schools train attorneys to spot problems but not how to solve them,” Baer said. “By teaching lawyers to identify problems but not training them to solve them, the practice of law has shifted from resolving conflict to creating it. This is particularly detrimental in cases dealing with children and families as it causes wounds that often last a lifetime.”

I have seen time and time again in divorce cases where situations that might have come to a peaceful resolution with a bit of guidance, or that might even have worked themselves out, were made worse by an overzealous lawyer. Lawyers, in the cases where they actually make matters worse, do not always do so out of malice, but also out of overzealousness or even just habit. Lawyers are indeed trained to spot problems and to look for ways to persuasively present a position, but not necessarily to consider all positions and work towards a compromise. Lawyers are trained to be warriors, or at least carpenters–to quote Abraham Maslow, “If you only have a hammer, you tend to see every problem as a nail.?

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Risk-aversion and the coming generational clash amongst lawyers

The other day a young attorney named Rachel Rodgers wrote a post at Solo Practice University called “Ethics Should Not Be Used as a Weapon Against Young Lawyers.” The post outlines a bit of the tension between older attorneys and the hordes of young lawyers now entering the marketplace and not finding jobs, many of whom are now starting their own practices (this was largely the theme of my post from yesterday, “Too Many Lawyers?”).

It’s a complicated issue, and it’s not even entirely clear what the points of contention are. I have commented a bit at Ms. Rodgers’ post, but the blawgosphere is starting to light up about it. Ms. Rodgers states that:

Professional ethics is supposed to be a code by which we lawyers operate to ensure that we are maintaining the highest level of integrity as we practice law. Unfortunately, many experienced attorneys have taken to using the word “ethics” and all of its connotations as a weapon against any attorney serving their clients in a way with which the criticizing attorney is unfamiliar or does not approve. Sadly, given that young and innovative lawyers are blazing a trail for new ways to both practice law and deliver their services, we tend to be the target for such ridicule. I have even seen some lawyers claim that young lawyers, especially solos, cannot possibly be ethical without the hand-holding (otherwise known as chiding) of more experienced attorneys.

Not the way to run a law practice

Not the way to run a law practice

The thing about that is that legal ethics is a pretty vast field stretching back for centuries, and it is often difficult for even gray-haired lawyers to fully grasp it. Technology is fast outpacing ethics rules when it comes to advertising by attorneys–today’s ethics rules are useful for Yellow Pages ads, but not so much for blogs. That said, the question is whether the changes in ethics rules that need to happen can best be achieved through research and deliberation, which is pretty much how it has always been done, or through innovation and experimentation in a free market setting. Lawyers have never been much for a free market when it comes to how we actually practice law. We are not a profession with a great love of risk (quite the opposite, in fact).

Scott Greenfield remarked on Ms. Rodgers and her practice back in June, and Brian Tannenbaum picked up the story yesterday:

Used to be that lawyers would work for someone and then go solo. Now there’s no jobs so lawyers are going from law school graduation, right to the computer to create their law firm twitter account and Facebook fan page, and presto – a practice is born with an “experienced, aggressive” attorney. Today we fake it until we make it, as the marketers encourage young lawyers to do.

I can’t exactly be critical of a newly-licensed solo, since I used to be one (technically I was a newly-licensed shareholder in a firm of three newly-licensed lawyers, but I became fully solo within 3 years, so close enough). At the same time, I have seen quite a few sketchy schemes from solo lawyers, and the value of having a mentor cannot be denied. I think law may be the only profession where brand new practitioners are allowed to jump head first into the pool right away, so maybe we need some sort of apprenticeship system. Just a thought. Matt Brown sums up the concern very well:

No lawyer, especially a young lawyer, is going to see every ethical pitfall. Whatever it is that you want to do may be the next best thing in lawyer marketing since sliced bread, but there’s no rule insulating from attorney discipline those lawyers who engage in innovative but ethically-prohibited business practices. The truth is that ethics rules will prevent plenty of lawyers from opening up certain types of “cutting edge” practices, just as the criminal laws ultimately stop many of my clients from operating their “cutting edge” businesses.

On the other hand, there is much to be said for reevaluating the risk-averse culture of lawyerdom. An extreme, possibly sarcastic example appeared on the blog What About Clients? the other day. A series of mantras, supposedly dating to 1836, appeared in the post “The 7 Habits of Highly Useless Outside Corporate Lawyers”:

1. Be risk-averse at all times. Clients have come to expect this from their lawyers. It’s tradition. Honor it.

2. Tell the client only what it can’t do. Business clients are run by business people who take risks. They need to be managed, guided, stopped. Don’t encourage them.

3. Whatever you do, don’t take a stand, and don’t make a recommendation. (You don’t want to be wrong, do you?)

4. Treat the client as a potential adversary at all times. Keep a distance.

5. Cover yourself. Write a lot to the client. Craft lots of confirming letters which use clauses like “it is our understanding”, “our analysis is limited to…” and “we do not express an opinion as to whether…”

6. Churn up extra fees with extra letters and memoranda and tasks. Milk the engagement. (If you are going to be a weenie anyway, you might as well be a sneaky weenie.)

7. As out-house counsel, you are American royalty. Never forget that.

I have my doubts about the historical authenticity (as does the blog’s author), but it does nicely illustrate how lawyers emphasize the avoidance of risk almost over all else. Quite often, that is exactly what corporate clients hire their lawyers to do. The question is whether that attitude should extend to lawyers’ own businesses. I used to tell my business client that I was their “professional pessimist.” In other words, they started their business to make widgets (or whatever), not to worry about contract terms or premises liability, so they should pay me to worry about it for them.

That’s not a bad way to help a client, but it’s far from the best way to run a business.

It’s not like young lawyers and old ones are fighting in the street. Thus far the debate seems to be limited to blog exchanges and ABA conferences. Sooner or later, the question of new lawyer innovation will butt heads with traditional risk aversion (some might say it has already happened), and it will be fun to watch.

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Too many lawyers?

Are there too many lawyers in America? You would certainly get that impression from blogs like Overlawyered. It is by now widely known that there are more new lawyers graduating law school than there are legal jobs available. Young lawyers, holding a brand new shiny law license and a mountain of debt, are going solo in increasing numbers. More and more functions traditionally performed by lawyers are being automated, shipped overseas, or converted to DIY by individuals and businesses looking to save money. The “circle of life” of the legal profession (and most other professions) is being interrupted by economic conditions, as older attorneys postpone retirement.

Net result: more lawyers for less work.

This is leading to a significant generational clash between older, more experienced lawyers and their younger colleagues who might have been promised the world only to find a desert. While the older generation laments hordes of fresh-faced newbies with newfangled ideas (yes, I’m overgeneralizing), the younger generation looks for ways to chart their own path and tries to innovate without getting anyone (or themselves) in trouble. I’m not convinced that younger lawyers get into ethical trouble at any greater rate than older ones, but it is a growing concern among older lawyers, justified or not.

Something will have to change about the legal profession. Technology has made legal information available to anyone, and the internet allows anyone to be their own lawyer. Despite the loudest protests of the legal profession, this change is unlikely to reverse. We will continue to have new lawyers and old lawyers, and in the quest to make a living new ideas will be tested. Some will be disastrous, and lawyers have a capacity to do more harm with bad business ideas than most other professions or industries (perhaps second only to medicine). We can fight each other and resist change, we can fight each other and doggedly embrace change regardless of the possible negative consequences, or we can help one another out and make the law work for as many people as possible. The era of the lawyer as warrior may be nearing its end. The new era has yet to be defined.

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Solo lawyers are not prostitutes

Photo by ehpien

I got a surprisingly small number of results when searching for royalty-free images labeled "pole dancer" on Google (photo by ehpien)

The title of this post may be offensive to some. Especially to prostitutes. I got the idea from a post from The People’s Therapist, in which he compares practicing law at a big law firm to doing sex work.

Many of my big firm lawyer clients aren’t sure what they’re doing at the office or why they’re doing it. You keep showing up in the morning and keep leaving at night. Sometimes you aren’t doing much of anything. Other times you’re slaving away at a task you half-understand. People keep smiling and saying hello when they pass you in the hall – and that paycheck, the point of the exercise, keeps getting deposited in your bank account. As long as the firm keeps paying – heck, you’ll make phone calls, chase down research, prepare a closing table, do doc review…or whip quivering buttocks, dance on a pole, or murmur gentle exhortations while your toes are licked. What’s the difference? Who cares?

I’m not entirely sure if this is more a denigration of big firm lawyers or of sex workers, or of both equally, or of neither. I think the point is that big firm life is an unpleasant slog done almost exclusively for the money, with about as much emotional appeal as licking toes (unless you’re into that, of course). At first, his post put me in mind of my quasi-libertarian arguments on why much sex work shouldn’t be criminalized the way it currently is (a topic for another post later, perhaps), but then he went on to address the type of legal work he (presumably) respects.

It does raise an issue: Are there lawyers who aren’t prostitutes?

I never shook off a strong regret surrounding my legal career – that I never learned how to practice law. You know – real law. Like when your friend calls because his cousin got arrested for a DUI. I have no idea what to do with a DUI. I wasn’t even a litigator – I was on the corporate side. I wouldn’t know where to start.

Here are some other things I know next to nothing about, other than in some vague, theoretical bar exam sense:

How to file for divorce.

How to close on a house.

How to write a will.

How to handle the legal necessities of a small business.

At this point, if a friend rang up with any legal question short of how to prepare for the closing of a multi-million dollar merger – or proof a securities offering – my advice would be useless.

There are lawyers out there who are not proletarian sex workers, right? Lawyers not owned by the capitalists. Lawyers who possess the means of production (as Uncle Karl would say.) Lawyers who crawl out of bondage and ascend to the petite bourgeoisie. Lawyers who “hang a shingle” and do real law. Lawyers who work for themselves.

I have never worked for a big law firm, nor have I ever desired to do so. What I have done is nearly all the work listed above. I have filed (or defended) over a hundred divorces. I have closed on sales of houses, both as an attorney for a party and as an escrow agent. I have written a will. I have seen dozens of new businesses through their “legal necessities.” I am secure in the knowledge that my work over the past nine years has benefited real people, not just giant faceless corporations. I have made a difference, for good or ill, in the lives of hundreds of people (maybe more).

What’s the trade-off? Money, of course. A friend at a big firm was once telling me about a new, small case his firm has just started. I asked him what constituted “small” in his universe, and he told me that they expected about $100,000 in legal fees. That would have been a good two-year period for me at the time. Many of my law school classmates made upward of $120,000 in their first year of practice, while I earned the rough equivalent of minimum wage (since most revenue went to overhead).

At times I think there is no single legal profession, but rather those who practice for ordinary folks inhabiting the same earth as lawyers who practice some astronomically larger, yet infinitely less personal, form of law. There are also government attorneys, but they do not fit in my dichotomy so I will not mention them again. I do not even have a real concept of what these well-paid, overworked lawyers actually do during their 40+ billable hours per week. I encountered some confusion as to my daily routine from big firm colleagues as well. Courtroom time and “client contact” are like the proverbial pot of gold to many young big firm associates; I had both in droves within the first few months of my practice (and found them a mixed bag at best.)

I’m happy to know that I am not a prostitute (again, no offense intended to prostitutes by comparing them to lawyers). I’m also flattered to know that at least some big firm attorneys look at the sort of practice I have had with something that resembles admiration or even envy. I can honestly say that, aside from the big paycheck, I do not feel that I missed out on anything I wanted by choosing my path. Each lawyer has their own path to follow, and each path seems to lead to one of two worlds (or government).

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Bad lawyers! Bad!

This is an old story, but it just caught my eye:

Two lawyers who used a pit bull logo and displayed the phone number 1-800 PIT BULL in their television ad have been disciplined by the Supreme Court for violating Florida Bar advertising rules.

The court overruled the recommendation of the referee in the case and found the ad was not protected by the First Amendment. It approved a public reprimand for the lawyers and ordered them to attend the Bar s Advertising Workshop within the next six months.

The lawyers involved, John Pape and Marc Chandler of Ft. Lauderdale, say they plan to appeal to the U.S. Supreme Court an won’t seek a rehearing from the state’s high court.

“I don’t believe that we are going to seek a rehearing. From a practical start it was a unanimous decision; there was no equivocation. I don’t think it would be very fruitful,” Chandler said. “We are going to appeal.”

The court ruled unanimously in the November 17 opinion, holding that the ad violated Bar rules because the image of the pit bull objectively had nothing to do with the type of services being provided by the law firm and improperly described the law firm’s services.

The full decision of the Florida Supreme Court is available online (PDF) should you care to check it out. The U.S. Supreme Court declined to hear the case, according to the lawyers’ own account of the case. Note that they still use “800-PIT-BULL”as their web address, and they have kept the logo available for viewing:

Many commentators have described out [sic] logo as “ferocious” or ‘fierce.” Please click here if you want to see the logo and determine if it is “ferocious” or ‘fierce [sic].

Photo by harminder dhesi photography on Flickr

Photo by harminder dhesi photography on Flickr

I’ll skip over an analysis of their spelling and punctuation skills. I think I have made my feelings about pit  bulls clear by now. I think they are awesome. Mistreatment and misrepresentation of these wonderful dogs just makes me angry. The ad in question is also a caricature of ridiculous lawyer marketing, which played a role in the court’s decision. I don’t really want to get into the First Amendment argument supporting the ad. These guys have received support from some “free expression” advocates. For me, the guiding principle here is that just because something can be said does not mean it should be said.

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Why I’m at a family law CLE

This week I am at the Advanced Family Law CLE seminar in San Antonio. Some may be tempted to ask “Why?”, which is a good question. As I sit here with about 500 other lawyers, I ponder my decision to step away from family law yet immerse myself in it this week.

  1. Keeping my skills up. Legal skills are a good thing to have. The mind needs exercise.
  2. Reminder of why I’m doing what I’m doing. I’m in for four days of tale after tale of familial acrimony and bitter feuding, plus advice on how to facilitate such conflicts. I’m positively giddy about looking for a job.
  3. Reminder of why I did what I did. For every tale of vindictiveness and strife there is a story of someone genuinely helped by a lawyer through a difficult process. I am proud to have been part of that system.
  4. I already paid for it. I got a discount for being a solo, but this thing still ain’t cheap.
  5. CLE credit. This 4-day seminar gets me 22.5 hours of credit. Since I’ve always been an overachiever where CLE is concerned, by Thursday I’ll be covered through 2015 or so.
  6. I’m in San Antonio! I’m not sure if this is an argument in favor of or against my attendance :p

This will be an interesting few days. More to follow, I’m sure.

  • Posted with WordPress for BlackBerry.

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  • Wishful thinking doesn’t build a law practice

    Photo by Tiara at www.sxc.hu

    Face it, we're long overdue for a visual lawyer joke (photo by Tiara at www.sxc.hu)

    My friend Debra Bruce (a/k/a the Lawyer Coach) has an article at Law.com: “From Associate to Solo — Don’t Overestimate Your Value.” She discusses how young lawyers tend to overlook many of the expenses, both in money and time, associated with being a young lawyer. I can certainly relate to that. Law practice, as it turns out, is not necessarily the quick road to riches that it may seem to be.

    You may dream of being your own boss, running a lean and mean shop with a lot less overhead than your current organization. With the technological advances of the last few years, that is undoubtedly an option. Just don’t underestimate the three crucial responsibilities in the success of any law practice: client development, collection of fees and taking out the trash.

    Well, you may not really have to take out the trash, but you will have a lot of administrative duties that hinder your ability to rack up billable hours. Almost all businesses wind up writing off some accounts receivable, and for most lawyers, it takes a lot longer to bring in new clients than they expected.

    I don’t want this article to dash your hopes and your belief in yourself. I want it to encourage you to do some realistic assessment and planning so that you don’t end up dashed on the rocks.

    It is by now well-known that I have soured somewhat on being my own boss. There has been a steep learning curve in the realm of running a law practice, something law schools tend not to teach. Those” administrative duties” in the above quote certainly do pile up. Every profession has its unique expenses. Law has insurance, continuing legal education, and all sorts of other ethical compliance issues. Marketing is particularly tricky for lawyers, who cannot afford to leave their marketing in the hands of a non-lawyer. New York attorney Eric Turkewitz coined the term “outsourcing marketing = outsourcing ethics,” meaning lawyers have such a convoluted code of ethical requirements surrounding our advertising that we can ill afford to leave it to someone not intimately familiar with those rules (bad things have happened when marketing is left to non-lawyers).

    Then there is client development. Clients will not just come to you because they need a lawyer and you are awesome. Client development is complicated, and unless you have an immediate family member with a corner office on K Street, it will not happen overnight. What’s more, the market is saturated with new lawyers. You will need to start getting creative, and that does not automatically mean going high-tech.

    I started my firm in 2002 with two other lawyers. They had experience from law school doing criminal defense. I had some immigration experience and had worked for a civil litigation firm, so the plan was for them to build criminal practices and for me to develop civil clients. This was before “blog” was a household word, when most computers still had floppy disk drives. So we did our marketing the old-fashioned way: direct mail. Every day, we would get the jail roster from the Travis County Sheriff, develop a mailing list, and print, sign, stuff, seal, and stamp several hundred letters to prospective clients.

    It’s not as crazy as it sounds. Not everyone has regular internet access, even today, relying on the mail. We stopped doing it for two reasons: (1) stuffing 250-300 envelopes per day sucks, and we didn’t want to hire staff just yet; and (2) more and more lawyers were sending letters and the rate of return was plummeting. Anecdotally, I heard that in 2002 about 20-25 lawyers in town were sending letters, but by 2004 there were almost 75. Now, everyone is so internet-focused, perhaps snail mail could have a Renaissance. Many people respond quite well to receiving a personalized piece of mail.

    poofytoo.tumblr.com

    via poofytoo.tumblr.com

    Don’t even get me started on collecting fees. I’d compare it to herding cats, but all a cat can do is scratch you.

    Personally, I think it is great whenever a young lawyer wants to go solo. The number of resources to assist a new solo grows every day (resources I wish existed, or that I’d known of, back in the day). It’s scary, but it can also be rewarding. What it definitely is not, is easy.

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    This week in unusual litigation (R v. I update)

    “R v. I” is just my shorthand for Rakofsky v. the Internet, in case you were wondering. As I’ve said before, others have addressed this case with much greater wisdom than I, but a few notable events have appeared on my radar.

    1. “Rakofsky Effect” has made it into Urban Dictionary:

    Infinite pleading amendments as the unintended consequence of suing to censor your critics.

    This term is in reference to Rakofsky v. The Internet, a defamation suit filed by Joseph Rakofsky against approximately 80 defendants, including The Washington Post Company, screen names, email addresses, and various esteemed lawyers who publicly on their websites condemned Joseph Rakofsky for bringing shame upon the practice of criminal defense and the legal profession. As the story caught fire across the blogosphere, plaintiff Rakofsky continually amended the suit, adding new defendants seemingly every time a new individual on the internet spoke critically of him, which only prompted wider criticism, thus creating a self-perpetuating cycle.

    Photo by Woodlouse, http://www.flickr.com/photos/woodlouse/, used under a Creative Commons license

    This lemur has nothing to do with the case I am discussing. He's just cute.

    There’s also a Twitter account I hadn’t noticed before.

    2. This may be completely unrelated, it may be completed related, or it may be some strange meta-narrative on the whole strange saga of young Rakofsky. On June 30, an ad appeared on New York Craigslist looking for a lawyer to handle a large defamation case, offering $200/week plus $150 per court appearance (this has since been changed to “Compensation to be negotiated”). First, Joe DePaola tweeted about it, and Ryan at Absurd Results blogged about it. Then my fellow defendant George M. Wallace made note of it in his weekly update on the case.

    The ad is a bit long to quote at length, so I have a couple of screenshots for your enjoyment.

    The ad does not identify the person(s) seeking an attorney. It could be you-know-who, or it could be another New York litigant suing a large group of defendants for defamation. One thing is clear, though: this seems a singularly poor method of finding an attorney. Fellow defendant Scott Greenfield said it best:

    As enticing as this offer might seem at first blush, it reflects a problem.  Could it be possible that the reason that the litigant who found it necessary to solicit a lawyer blind on the internet can’t find a lawyer otherwise?  Lawyers are a dime a dozen, taking on dubious causes all the time if there is even the slightest hint of making a buck somewhere down the road.  Why, then, does the person who has carefully crafted his requirements for his lawyer found it necessary to go to the virtual street and solicit for anyone, anyone at all, willing to take him on?

    What if the ad-placer went from lawyer to lawyer, knowing a few who could be asked to fill the shoes he feels are so vital to his cause, and was told that despite their hunger and desperation, their willingness to take on pretty much any case that held any potential to make a buck, they would not take his?  This would seem to be as clear a message that his cause was not just, not right, a horrible loser.

    Who is this mysterious seeker of legal services? We may never know for sure, but his/her case seems to parallel one that is familiar to me. I will say this: we have a lot of lawyers in America right now. Some are quite good, some are not quite so good, and all of them probably need more than $200 per week to really focus attention on a case.

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