Free online CLE and how CLE doesn’t always mean “continuing legal education.”

“Once more unto the breach” — even at the risk of boring non-lawyer readers. An updated post of free online continuing legal education follows.

And for the uninitiated, I will keep posting free online CLE resources so long as it remains my sardonic opinion that the real reason some if not all bar associations continue mandating continuing legal education is to ensure cash cow money-making revenue. And oh yes, there is that pretextual public relations reason to protect consumers from incompetent lawyers. (Kudos Kentucky Bar Association for offering every member the opportunity to meet their annual CLE requirement, including ethics, close to home and with no registration fee through their “Kentucky Law Update” program).

The ‘value’ proposition.

If consumer protection is supposedly so valued — why does CLE continue to be so damn expensive, especially when the quality, utility and content often sucks?

Any wonder that so many lawyers, especially those young legions of the heavily-indebted and the out-of-work keep hunting for free CLE? “Free” always trumps $150 for a webcast hour.

But beware of that other CLE: the “Career Limiting Event.”

But before getting to that updated online freebie list, it’s worthwhile mentioning that the acronym, “CLE,” every now and then means something else, as in “Career Limiting Event.”

As an ethical refresher for every lawyer at a live continuing legal education class who zones out in the midst of pompous prattle or who checks fantasy football scores on their smartphone during sleep-inducing Powerpoint, Ethical Rule 8.4: Misconduct says it’s “professional misconduct for a lawyer to: “(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and “(d) engage in conduct that is prejudicial to the administration of justice.” Said another way, if you’re going to certify you took a course, it may be “misrepresentation” to claim you took part — if you didn’t pay attention.

To illustrate, take the real-life instance of an Illinois lawyer who last year after being charged with “Dishonesty and Submission of False Information to the MCLE Board,” was eventually suspended for 3 months for violating ER 8.4 — because the Court found he had “directed a secretary in his office to watch the courses on a laptop computer and respond to the prompts as if he were watching the course.”

More specifically, according to the Illinois State Bar Association, the longtime lawyer “falsely reported to the Minimum Continuing Legal Education Board of the Supreme Court of Illinois that he had completed 20 hours of continuing legal education activity during the 2007 to 2009 reporting period. In fact, he had enrolled to take only 19.25 hours of CLE work and his secretary . . . completed some of the online CLE classes [the lawyer] claimed to have completed.”

Forewarned.

Sure that’s a noteworthy cautionary tale but I doubt any of the perspicacious lawyers reading this blog and accessing free online CLE would ever deign to leave laptops unattended and walk away in the middle of a still playing online program.

Nor is it easy to believe these astute lawyers would dare relinquish ethical responsibilities to anyone else. Still, better forewarned and forearmed.

The updated online free continuing legal education list follows along with the usual disclaimers concerning continued accessibility, content or whether your jurisdiction accepts any of these programs for credit.

I also mean no reproaches on the philanthropic providers of these freebie programs. However, I will again cast a disparaging word upon a certain ungrateful lawyer with the stones to complain about something for nothing.

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The Network for Public Health Law – Webinar Series

http://www.networkforphl.org/network_resources/webinar_series/

Future of Primary Care: The Changing Role of the Primary Care Provider -20111117 1800-1

Listen to and watch this webinar held November 17, 2011 for an introduction of “evidence on the role of nurse practitioners as primary care providers . . . issues of quality, cost and access . . . the current differences of related state laws. You may qualify for CLE credit.”

~ The Supreme Court’s Decision on the Constitutionality of the ACA-20120719 1650-1

Listen to and watch the webinar held July 19, 2012 concerning the Supreme Court’s decision and its implications for the Affordable Care Act’s reforms to the individual insurance market, the Medicaid expansion, and the future of the ACA’s public health-related provisions and accompanying federal funding. Depending on jurisdiction, may qualify for CLE credit.

~ Data Surveillance and Data Exchange: A Tool for Comparative Effectiveness-20120517 1659-1

Listen to and watch the webinar held May 17, 2012 providing an overview of “recent developments regarding data exchange and surveillance, explore the inherent privacy issues associated with data exchange and data surveillance and discuss using data exchange and data surveillance as a tool for comparative effectiveness.”

“You may qualify for CLE credit via the American Society of Law, Medicine & Ethics (ASLME).”

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Free CLE Course: Disability Insurance Claims

From Attorneys Dell & Schaefer, Chartered, “We invite you to sign up for our free online CLE course. This CLE course was created by Disability Attorneys Dell & Schaefer and is titled ‘Introduction to Disability Insurance Claims and ERISA Law.’ The course is comprised of multiple videos totaling 255 minutes (between 4.25 to 5 CLE credits depending on your state).”

http://www.diattorney.com/cle/

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Expanding Your Practice Using Limited Scope Representation 2012

From the Practicing Law Institute

Item# 39211

Format: On-Demand Web Programs

Full Seminar
Free
Launch Now

http://www.pli.edu/Content/OnDemand/Expanding_Your_Practice_Using_Limited_Scope/_/N-4nZ1z12uzg?fromsearch=false&ID=153434

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~ A “Charging Lien” as an Adverse Interest Under Rule 3-300 of the Rules of Professional Conduct
State Bar Office of Professional Competence

1.0 hour of ethics, self-study credit

Get Now

~ The Proposed New and Amended Rules of Professional Conduct
State Bar Office of Professional Competence

1.0 hour ethics, self-study credit

Get Now

http://www.legalspan.com/calbar/e-pubs.asp?CategoryID=20011116147985140428&UGUID=&offset=1

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Oregon State Bar’s “Making a Difference: Mentoring New Lawyers”

Complimentary program approved for 1.25 General CLE, 1.25 Ethics, and .75 Access to Justice credits. Click here for video.

http://law.lclark.edu/continuing_education/

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How the Internet is Reshaping Assisted Reproduction: From Donor Offspring Registries to Direct-to-Consumer Genetic Testing.

From the University of Minnesota’s Consortium on Law and Values in Health, Environment & the Life Sciences. View Video Online. “Continuing Legal Education credit (CLE) has been approved (1.5 hours).“

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Along with several other jurisdictions, the Florida Bar has accredited up to 8.5 hours of CLE for “Treating the Invisible Wounds of War” (IWW) online training course.  Go to “New Users” tab at www.aheconnect.com/citizensoldier to access the course and the registration form on the site.

https://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/Articles/871936AE4A8538648525791700499C2A

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~ The Americans with Disabilities Act: How to protect your deaf, hard of hearing or deaf/blind client.

Course No. 81151 at the Florida Bar’s 24/7 On-Demand CLE.

.05 hour of ethics credit

“This course provides attorneys with a basic and pragmatic understanding of the requirements of the Americans with Disabilities Act (ADA) and how it relates to working with deaf, hard of hearing and deaf/blind clients.”

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Photo Credits: “Bored,” by scragz, Jason Scragz, at Flickr via Creative Commons-licensed content requiring attribution;”Blogger at breakfast after Eglon van der Neer,” by Mike Licht, NotionsCapital.com at Flickr via Creative Commons-licensed content requiring attribution; “punctelia at work,” by owlmonkey at Flickr via Creative Commons-licensed content requiring attribution.

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Lawyer’s “situation suitability analysis” and the hazards of unbundled legal services.

Last December, in blogging about how to “get your money’s worth when talking to a lawyer,” I opined that “Consumers make appointments to see lawyers because they want advice about a legal issue or problem .. . not . . . because they want the lawyer to explain how the representation is going to proceed.”

In particular, I took issue with a young lawyer who viewed initial client consultations as get-acquainted sessions. And notwithstanding that clients paid $200 for this ‘greet & meet’ — the lawyer made no bones about not dispensing any legal advice at that initial meeting. One wonders how happy the still uninformed clients are after their billfolds are $200 lighter post-preliminary consultation.

Having heard this kind of thinking before, I suspected that there was more than one lawyer taking this approach. As it turns out, there is — but admittedly, with a distinctly different wrinkle. Emory Booker, a Milwaukee lawyer who calls himself the ‘Light Hero,’ has generated his own unwelcome light from the bankruptcy court for conducting what he calls ‘situation suitability analyses — and not full blown legal representations for clients.

Booker’s prior claim to fame had been helping delinquent utility customers avoid power disconnection by filing voluntary debt amortization plans called Chapter 128 petitions. The tactic had been successful up until last year when Milwaukee County Circuit Judge William Pocan said the utility wasn’t actually required under Chapter 128 to abstain from pulling the collective plugs on petitioners’ power. Disconnection was not an “execution, attachment or garnishment” specifically prohibited by the 50-year old Wisconsin statute. » Read Full Article

What’s instead making headlines now isn’t the matter of those petitions. It’s whether or not Booker’s so-called pre-bankruptcy ‘situation suitability analysis’ didn’t confuse some clients into thinking they had lawyered up with a full-blown representation in bankruptcy court.

In his defense, Booker says he told his ‘situation suitability analysis’ clients that his legal services were  à la carte, i.e., limited. Nevertheless, the Eastern District of Wisconsin Bankruptcy Court has taken notice of the purported client confusion and has ordered hearings to further its inquiries. The Court is looking at Booker’s client representations since it appears that some of his clients have now claimed they thought they’d hired themselves a lawyer to handle the whole bankruptcy enchilada and not just a needs assessment. Client refunds may be ordered.

Booker’s predicament points out one of the biggest pitfalls attendant to limited representation of clients, i.e. making sure that clients understand that the scope of services is limited to a specific and discrete task.

In Arizona, Ethical Rule 1.2 (c) says that “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

An excellent set of cautionary signposts was offered by Patrick Burns of Minnesota’s Office of the Director of Lawyers Professional Responsibility as quoted by Scott Russell in “Opportunity for All or Pandora’s Box.” Burns advised making sure the client understands: “What the attorney is going to do for the client; What the attorney is not going to do for the client; and What is going to remain to be done once the attorney is finished.”

Otherwise, if a lawyer isn’t careful, some clients will misunderstand or become confused about the nature and extent of the representation. And before you know it, presto, change-oh, you’re doing the “full Monty.”

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Credits: “The Flasher, with trenchcoat open,” by sylvar at Flickr via Creative Commons-licensed content requiring attribution.

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“Om” not “Owie:” Yoga, stress, and not wrecking your body.

News that Yoga Can Wreck Your Body has devotees astir. I would’ve said it’s also got them hot and bothered. But those doing so-called “hot yoga” were already hot and bent from the last time critics warned of “torn cartilage or painful wobbly joints” from Bikram Yoga poses in 105 degree and 40 percent humidity rooms.

In May 2004, the New York Times asked,“When Does Flexible Become Harmful? ‘Hot’ Yoga Draws Fire.” Physicians warned then that “exercising in heat 2 to 7 degrees above the body’s core temperature of 98.6 can be dangerous.” And if you smoked, had high blood pressure or couldn’t reach your back pocket, dehydration wasn’t the only thing to worry about.

The debate over the risks vs. benefits of yoga has started anew. Several days ago, the New York Times Magazine ran a report quoting 40-year yoga teacher Glenn Black that yoga’s likelihood of harm is so great that “the vast majority of people” should give it up.

On Wednesday night, devotees must’ve felt like untwisted pretzels when NBC‘s Nightly News ran a follow-up. “Can yoga wreck your body?” even featured a sports medicine and spine specialist, Dr. Jennifer Solomon, saying she’s “seen a ton of yoga injuries.”

“Om” not “Owie!“

There’s a reason people risk “ouch” to seek “Om.” Despite the ‘owies,’ Yoga has remained popular because as the television report said, it’s an “antidote to stress.”

Coincidentally, a just released American Psychological Association survey says that stress is down and at its lowest point in 4 years. However, 2/3rds of survey respondents still consider “work” as“somewhat or very significant” – - – second only to “money” as one of the top 10 stress causes. No surprise. This is consistent with studies on“Why Americans hate their jobs.”

In 2007, Gallup found that 77% of Americans hated their jobs – - – up from over 60% of respondents who answered the same way 20 years earlier. See “Three signs of a miserable job.”

But as explained in Sharon Jayson’s USA Today article, “Americans are stressed, but we’re getting used to it,” the most likely reason stress has gone down is “because stress has become the new normal for life in the USA.”

Or as Steve Taylor nihilistically sang,“Life unwinds like a cheap sweater. But since I gave up hope I feel a lot better.”

Lawyers and stress.

There’s little doubt, though, that among the 70% saying that work causes them stress, a fair number are lawyers. See, for example,“Stress Management for Lawyers” and “Stress Management – An Ethical Issue in the 21st Century” and “Stress and Impairment of Attorneys.”

But of those “Lawyers Who Practice Stress-Reduction Techniques,” I don’t know how many are into yoga. Since so many lawyers are hidebound traditionalists, yoga’s probably not as commonplace unless they’re all keeping it a secret.

I remember one lawyer a number of years ago who was into yoga. I found out inadvertently. He was opposing counsel in a Title VII case. The day he took my client’s deposition, he surprised me when he unexpectedly signaled an earlier-than-expected end of the deposition.

Nevada is one of the many state jurisdictions that doesn’t expressly limit the duration of a deposition, that is, short of obtaining a protective order. But since Title VII cases are brought in federal court, the Federal Rules of Civil Procedure apply and specifically, Rule 30 (d) (1), which thankfully provides, “Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”

So when defense counsel abruptly signaled he was wrapping up, it was, he told me, because he had yoga that afternoon. I realized then why, unlike other employer defense hard-asses, he was so affably mellow.

But this experience notwithstanding, given the ongoing prevalence of attorney incivility, I wonder how many others are doing ‘the Crane’ (Bakāsana) or ‘the Crow‘ (Kākāsana) after work. Probably not many, given the documented incidences of depression, stress and substance abuse in the profession, see e.g., Lawyer Assistance Programs Lawyers and the Practice of Therapeutic Jurisprudence and Lawyers Helping Lawyers.

No, the chances are more likely that instead of yoga and risked hyperflexion of the neck, stress relief may instead mean an Ichabod Crane or a shot of Old Crow.

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Photo credits: Yoga posture halasana by Joseph RENGER via Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license;

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Getting your money’s worth when talking to a lawyer.

Consulting a lawyer is not like going out for ice cream or cruising the Caribbean. Lawyers aren’t in a ‘fun’ business that consumers happily anticipate spending money on. It can’t compare to two scoops of rocky road or a cold mojito on the promenade. Indeed, for some people, seeing a lawyer can be on par with a proctoscopic exam or a root canal.

First, there’s the high cost of legal services. And then there’s the frequent gap between cost-to-benefit. Worse yet there’s the overweening arrogance of some practitioners.

Think self-absorbed, mordacious Mavis Gary, the unlikeable ex-prom queen turned “author” played by Charlize Theron in ‘Young Adult,” the cynically dark comedy I saw yesterday. I can see law school in Mavis’s future.

Or for another instance, there’s Brian Tannebaum’s “who gives a crap?” philosophy eschewing lawyers who hand out business cards, “if there’s a reason we should talk again, we’ll find each other. Trust me, if I need to remember you, I will.” See “The Practice: Enough with the Worthless Networking.”

Then again, there’s a certain pompous personal injury lawyer who vets prospective clients by reducing them to tears by rudely second-guessing their injuries during an initial interview. Here must be the thinking. Someone’s got to toughen up a would-be client for contumelious cross-examination, so it might as well be your own castigating advocate. Too bad ‘asshole’ isn’t part of the protocol for good bedside manner or this guy could be on to something.

But even with that, another reason consumers avoid lawyer services is the arcane, jargon-filled confusion. It’s time-consuming. And it can be more frustrating than a shell game and a lot less fun than hiding-the-salami.

And with law schools churning out a record excess supply of lawyers despite deeply-cratered demand, it’s no wonder one metaphor-mixing columnist likened lawyers to locusts who beaver away on society. See Jim Barlow’s “Lawyers respected till they took over” – Houston Chronicle.

AveryIndex puts out a state-by-state breakdown, Highest Per Capita Lawyers, that puts an already-high per capita number even higher depending on where you live. Also see “Documenting the Justice Gap in America.”

With such numbers, you’d think humility would be way up and prices would be way down.

Initial consultations.

So what’s a consumer to do? First, they have to get past the initial consultation ‘disconnect’ between what some lawyers believe they’re supposed to provide prospective clients versus what potential clients think they’re supposed to get from their lawyer.

One young lawyer I know tells newbie lawyers that the purpose of an initial consultation is not to give legal advice! Instead, it’s for the lawyer and prospective client to identify conflicts of interest; to see if the lawyer and client prospect want to work together; and for the lawyer to explain how the representation would proceed if the potential client hires counsel.

One might think there should be a bit more. At least a client might think so since more and more, there’s a cost associated with imparting such underwhelming wisdom. The above-mentioned young lawyer, who also disdains “free consultations,” charges $200 for a one-hour initial office consultation. And notwithstanding that $200 tariff, the lawyer incredibly asserts that lawyers aren’t supposed to give legal advice until they’ve been hired!

Memo to practitioners.

Consumers make appointments to see lawyers because they want advice about a legal issue or problem. It’s not to help the lawyer determine if there’s a conflict of interest or because they want the lawyer to explain how the representation is going to proceed. It isn’t even necessarily to see if they like the lawyer, although that’s important if the lawyer has the odoriferous personality of an acre of garlic.

To cut through the self-serving justifications, there’s a reason state bar consumer advisories frame their advice concerning first meetings with lawyers. The Virginia State Bar recommends consumers prepare for a first meeting by writing “a short summary of your case, including facts and dates and a list of questions you want answered.” See “Selecting and Working with a Lawyer – Virginia State Bar.”

The Georgia State Bar also has a consumer pamphlet covering the same subject, telling potential clients, “The first time that you meet with a lawyer, you should be prepared to discuss and ask questions in regards to the facts of the potential legal problem that brings you to the lawyer’s office.” 

The Georgia Bar even provides sample questions, such as “Based on my situation, do I have a legal problem? Make sure you fully explain your situation to your lawyer. Bring any papers or documents you think may help explain the story to the initial consultation. Make sure your lawyer covers both practical solutions to the problems as well as options available under the law.” See “How to Choose a Lawyer – State Bar of Georgia.“

And indeed, to further buttress the belief that consultations involve more than a ‘meet and greet,’ the ABA Model Rule 1.18, “Duties to Prospective Clients” was amended in 2002. Arizona ethics expert David Dodge has a good analysis of that rule change at “The Prospective Client.” Also see “When is a client a client?”

And what about the client who has paid the consultation fee, only to belatedly find that the lawyer can’t or won’t represent them? An ethics opinion from the District of Columbia Bar says “the attorney bears the responsibility for seeing that there is no likelihood of misunderstanding as to fee arrangements.” See “Ethics Opinion 4: Propriety of Charging Fee for Preliminary Investigation of Client’s Case in Absence of Agreement Between Attorney and Client.”

Final note to prospective clients.

So here’s the upshot for would-be clients whether paying $50 or several hundred dollars for an initial consultation, know upfront what you’re getting for that money. While it’s not a new best friend, it’s also not merely a kick-in-the-wallet. Also see “Tips on Hiring a Private Attorney” | The People’s Law Library and “Questions to Ask Before Hiring a Lawyer” – The Law Guide and “How Can I Find and Hire the Right Lawyer?” – The State Bar of California.

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Why Free CLE? Because it’s a commodity and because “interesting CLE” is oxymoronic.

With just a month till year-end, some lawyers are in the throes of final procrastination to meet calendar year mandatory continuing legal education requirements. And yeah, those are the honest ones.

There are lawyers I meet who trigger my well-calibrated “B.S.” detector bragging about how they “always end up with more CLE than they need.” Yeah – - – right. And I always get all the gifts I want at Christmas.

So to allay a panic attack, here’s another “Free CLE” update. And the usual caveats apply. If a link is broken or if the content sucks or if your jurisdiction won’t approve it, don’t blame me.

Also, for programs outside your jurisdiction, you’ll need to obtain approval for MCLE credit. I’ve previously blogged about how to do this, including at “General online learning can provide another creative way to Free CLE” and at “The Irreverent Lawyer’s 1st anniversary: updated free CLE webinars and podcasts.”

But ahead of that, indulge me one more soapbox rant on mandatory CLE – - – if you don’t mind. Make no mistake. Continuing legal education is fungible. We’re talking commodity, here, amigos. One pork belly is the same as another. Or when you can tell the difference between one frijole over another, let me know.

And then there’s the content. “Interesting CLE” is oxymoronic and “useful CLE” chimerical. And this is regardless of what providers charge and “Why most continuing legal education sucks.“ But more importantly, when something’s commoditized, the only difference, then, is price. And “Free” always trumps a price tag.

So unlike the greedy online shills, the dog-and-pony moonlighters, and the bottom-line hungry local and state bar associations, I don’t have any financial self-interest in CLE. See “Who’s making money from MCLE?”

To borrow a quote from Eric Sevareid, I post free continuing legal education courses on this blog, “To comfort the afflicted and afflict the comfortable.”

So for all the lawyers not so fortunate to be sitting on “more CLE than they need,” and who’re still short on credits – - – not to worry, here’s more online FREE CLE.

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Alaska Bar Association
3.0 hours of ethics credit

“2011 Updates: Practicing Law with Your Head in the Clouds and Your Mind on Ethics.”

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New York State Bar Association – The NYSBA Committee on Lawyers in Transition

www.nysba.org/LITArchivedWebcasts

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ARDC- Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois

Law Practice Transitions: The Ethical Obligations When Selling, Closing or Leaving a Law Practice.

Emerging Trends in Legal Ethics and Professionalism: Today and in the Future

Getting Good Clients and Keeping Them

Identifying and Resolving Conflicts of Interest

Law Practice Transitions: The Ethical Obligations When Selling, Closing or Leaving a Law Practice

The Ethical Requirements of Handling Trust Funds under Rule 1.15

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TexasBarCLE, “Judicial Panel on Success for NewLawyers //Workingwith Others in Practice // Starting/Building
a Practice // How to Succeed in First Trial or Transaction: Keys to Victory in Court or Boardroom” (online class) Free Online Class at http://www.texasbarcle.com/CLE/home.asp
http://www.texasbarcle.com/CLE/AABuy0.asp?sProductType=EV&lID=8467

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Foster Pepper PLLC and Northwest Justice Project

Podcasts: Serving The Legal Needs Of Urban Native Americans

The seminar, which was held March 31, 2011 in Seattle, was approved by the Washington State Bar Association for 3.0 Ethics and 2.0 General CLE credits, 5.0 credits total.

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Pennsylvania Bar Institute (PBI) -

This one’s hard to explain. Other than – why give it away when you can charge for it? PBI makes available each week, a “free online course with all the features of the regular course, except CLE credit.”

But I would think this shouldn’t keep non-Pennsylvania lawyers from submitting these “free” courses for credit in their own jurisdictions since otherwise, these ‘ducks look like and quack like ducks’ even if PBI says they’re not mallards.

Free online CLE or podcast

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Bent over. Malpractice Insurance redux.

Two years ago, I first blogged at “Opening My Kimono to get Lawyer Malpractice Insurance,” about the pitfalls and annoyances of obtaining lawyers malpractice insurance – - – a necessary evil.

I call the process a pas de deux except here, your dance partner keeps stepping on your toes. And as your ‘partner’ in this scenario is the malpractice insurance company, they’re constantly changing the entrée on you. Also see “Is the second shoe about to drop? Lawyer’s Malpractice Insurance.”

That time of the year . . . to bend over.

So it’s renewal time again. To justify their ridiculously high malpractice insurance rates, once more lawyers are asked to take ‘on faith’ the stories agents tell them, e.g., that “claims are up” or that “all premiums are going up” or that “new areas are seeing more claims.” And mind you, it’s irrelevant whether or not you’ve had any claims, suits or bar discipline. You’ll pay more regardless. But, if any of those exceptions apply, well, then forget it, bend over.

Please believe me.

So this year, I heard again that “Please Believe Me“ nonsense. Without empirical data to speak of, or at least the sharing of facts with their customers, insurers expect the most cynical of professionals – - lawyers, to guilelessly accept their assertions concerning the supposed higher risk practice areas or jurisdictions.

                                                                                                               Historically, insurers have contended that the ‘high priced spreads’ are, plaintiff’s personal injury, securities law, and of late, class actions. But earlier this month, one company shill told me “business/commercial transactions” were becoming higher risk. I guess they’ll soon have a rider for that, too.

Say what? At this rate, every practice area will be “hazardous.” For that matter, the only other supposed “highest frequency” practice area information I know of came 25 years ago when the ABA’s National Legal Malpractice Data Center released data on 30,000 claims nationwide. “Legal malpractice claims occur with the highest frequency in a few specific areas of law: personal injury plaintiff, 25.1%, real estate 23.3%; collection and bankruptcy, 10.5%; family law 7.9%; estate, trust, probate, 7%.” See “Board Issue Paper – Professional Liability Insurance Company.”

And then turning the concept of who the customer is on its pointy little head, one foggy-headed insurance broker blissfully blogged at, “Lawyers Professional Liability Insurance – Why Does It Cost So Much?,” “The first, and I believe the most important, consideration for law firms to consider when you complete your lawyers professional liability insurance applications is the attitude brought to the process; why are you doing this?

“The application is your opportunity to tell the story of your law firm; why should an underwriter want to insure you and why should they offer you the best pricing they have available?“

Attitude? You want “attitude”? “Why should an underwriter want to insure you?” And“Why should they offer you the best pricing they have available?” Huh? Should lawyers gratefully get on all fours if an underwriter deigns to insure them? If that wasn’t so absurd, it might be laughably ridiculous.

But assuming the recession and flaccid business hasn’t forced a lawyer to go commando, i.e., “uncovered,” here are a few ‘Do’s and Don’ts’ on trolling for realistically competitive lawyer’s professional liability insurance.

1. Don’t get too comfortable by staying with one insurer. Shop early and every year. The Internet and ‘word of mouth’ are great search tools;

2. Don’t get complacent by staying with the same broker;

3. Avoid the ‘fox in the hen-house’ effect. Push back when a broker or insurance agent defines what’s “reasonable” or “competitive.” The easiest money to spend is somebody else’s money;

4. Don’t believe insurance company or broker “nonsense” about excessive claims in your jurisdiction. Each company has its own claims experience and another company may be much more competitive in the identical market. And besides, where’s the proof?;

5. Don’t disclose your current premium cost. All the applications ask. But you don’t have to tell them. Opening your kimono only leads to being taken advantage of;

6. Carefully analyze your practice areas. Make sure you accurately reflect the correct percentages on the application;

7. Make sure comparisons are “apples to apples,” e.g., insurers with the same financial ratings, coverage limits, deductibles, defense coverages, admitted vs. non-admitted companies, etc.

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Photo Credits: Rob Bending Over Roof by Paul Waite pauldwaite via Creative Commons Attribution-ShareAlike License at Flickr; Hen house by Phil Catterall at Wikipedia Commons via Creative Commons Attribution-ShareAlike 2.0 license.

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Ethics “as a weapon against young lawyers” or sometimes you do need ‘both hands and a flashlight.’

Last year, I took a just-licensed baby lawyer to breakfast. I applauded his fresh-faced enthusiasm. But I was taken aback by his wide-eyed eagerness to “not refuse any kind of case” and his resolve to “practice all areas of law.”

Unfortunately, I knew he’d tuned me out by the time I raised the potential pitfalls in trying to be all things to all people or when I mentioned his obligations under Rule 1.1: Duty of Competence.

Like many young lawyers who now find themselves unemployed and overwhelmed by unconscionable six-figure, non-dischargeable tuition debt, he was determined to do it his way and to hang his shingle as a solo.

Because I knew that his plans were as much about forced necessity as about foolish hubris, I bit my tongue, albeit with much difficulty. I didn’t offer up how hard it can be when you’re starting out and that too often, you don’t know what you don’t know. Or how when you run into your first difficult problem, it’ll seem as though you can’t “find your own ass with both hands and a flashlight.”

Not knowing what you don’t know.

This week, I thought of my breakfast with that brash young lawyer for a couple of reasons. First, there’s a blog post making the rounds authored by a young New York and New Jersey licensed lawyer. Her name is Rachel Rodgers and she describes her online law practice as “Business Lawyers for Generation Y Entrepreneurs.”

In her post, she posits that “Ethics Should Not Be Used as a Weapon Against Young Lawyers.” She argues that “old dogs” need to learn new tricks and how they shouldn’t bark at young lawyer-trailblazers like herself. In particular, she chafes at criticisms from “more experienced” lawyers “because I practice law online or because I practice law in a state where I do not live or because I market my practice online.”

Instead of criticizing or ostracizing young lawyers or questioning their integrity by “using the word ‘ethics’ and all of its connotations,” Ms. Rodgers insists that more seasoned lawyers should instead “point out areas you think present an ethical hazard. . . .”

Developing “practice-ready” lawyers.

The second reason I thought of that young lawyer is because the same day that Ms. Rodgers posted her “angry” remarks, the ABA coincidentally adopted Resolution 10B, which “urges steps to assure that law schools, firms, CLE providers and others provide the knowledge, skills and values that are required of the successful modern lawyers; and urges legal education providers to implement curricular programs to develop practice-ready lawyers though enhanced clinical courses.” See “ABA Adopts Policy to Improve Legal Profession, Advance Justice.”

What’s clear from the confluence of these two unrelated events is that more needs to be done to make young lawyers “practice-ready.” I doubt, though, that the answer is more overpriced continuing legal education. Or in entrusting the solution to the very law schools that created the problem in the first place – - -  of young lawyers running around in the dark trying to find all 4 cheeks with a broken flashlight.

38 years ago, Supreme Court Chief Justice Warren Burger said, “. . . in spite of all the bar examinations and better law schools, we are more casual about qualifying the people we allow to act as advocates in the courtroom than we are about licensing electricians. The painful fact is that the courtrooms of America all too often have Piper Cub advocates trying to handle the controls of Boeing 747 litigation.” See “The Special Skills of Advocacy” – The Fordham Law Review. And also see, for example, “Why most continuing legal education sucks” and “Too Many Lawyers?” and “Bite me.” and “Law schools award a degree of “BS.”

Ethics.

The Model Rules of Professional Conduct: Preamble & Scope comprise 21 comprehensively substantive paragraphs. They broadly encompass much of what Ms. Rodgers confuses by interchangeably discussing “being ethical” with “basic morality” and “bar rules.” But then, as the Parisian lawyer/playwright Bernard-Joseph Saurin once said, “The law often permits what honor forbids.”

So I won’t wade into those deep waters here, especially since I’d have to navigate my jesuitical recollections and consult my worn-out copy of “First Philosophy” and St. Thomas Aquinas’ “Summa Theologica.” Perish the thought.

Suffice it to say, however, that ethics or more properly, the lawyer rules of professional conduct are more than what Ms. Rodgers oversimplifies as merely maintaining “the highest level of integrity” or of young lawyers “fully capable of being as ethical as their more experienced colleagues as they serve their clients.”

Longtime practitioners who are supposed to know better just as easily get themselves into ethical hot water – - – even after many years of practice. So it’s hardly criticism to stipulate that young lawyers can’t begin to conceive of the inadvertent ethical trouble that can sneak up on any lawyer. Take, for example, “exorbitant fees” or “conflicts” of interest or lawyers who fail to understand “When is a client a client?” or who don’t grasp the ethical hazards in “the intersection of online testimonials and ethics“ or that lapse into unsuspected “ethical breaches” as “Listserv lawyers” or solos who forget that “Size matters as long as you don’t lie about how big you are.”

And ironically enough for Ms. Rodgers, a licensed New Jersey lawyer, there’s the question posed by New Jersey’s state’s supreme court-appointed Advisory Committee on Professional Ethics, Committee on Attorney Advertising, “Are virtual law offices ethically impermissible?”

And along with that concern is the risk faced by Ms. Rodgers and any other lawyer with an online law practice. It is highlighted by the rule in New York, the other jurisdiction in which she is admitted, at NY DR 3-101(B), “A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.” On that score, see Matt Brown’s comments on her alleged “Unauthorized Practice” at Tempe Criminal Defense.

And finally, from her website, with a physical address in the west “Valley of the Sun” Arizona, it appears Ms. Rodgers may be a neighbor.

Hey, I do know a pretty good place for breakfast. . . .

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On groups, chickens & “daily deals” for lawyers: “Yes, no, & maybe so.”

The Carolinas are on the leading edge of potentially the next lawyer marketing frontier, “daily deal” email and smartphone alert coupon offers for legal services. Both jurisdictions have now issued advisory opinions on lawyer participation in these “deal-a-day” discount offers. But unfortunately, one Carolina says “No” and the other Carolina says “Yes” or more likely, a reluctant “Maybe so.”

The jurisdiction that said “No” was North Carolina. Earlier this year, it issued Draft Proposed Ethics Opinion No. 2010-4 making off-limits lawyer participation in such”daily deal” voucher offers because it was deemed impermissible fee-splitting.

These promotions, first popularized by Groupon, have now hit virtually all major markets. And the success of the concept has led to a coterie of competitors like DealChicken, LivingSocial and Google Offers.

However, all the “daily deal” websites share close similarities. They offer local consumers one deeply-discounted daily deal on fun, life-enhancing products and services such as movie tickets, restaurant meals, spa treatments, vacation getaways, massages, and even golf.

And all claim to help partnering local businesses build their brands, find more customers, and generate additional revenue. The ‘deal-a-day’ websites don’t ask for money upfront. Instead they collect payments for customers, distribute the vouchers to those customers, and then mail the participating business a check, which typically represents half of what the website took in.

But it’s pricey for these businesses since the websites take hefty chunks off the top. The businesses get only a fraction of their normal price and must honor their deep discount on their product or service.

So what about “daily deals” for lawyers? It’s been tried. This is why interest was sparked from both lawyers and from those that govern them.

Last August, the Law Offices of Craig S. Redler & Associates Deal of the Day offered St. Louis, MO consumers a Will and Durable Power of Attorney for $99, an 87% discount off the supposed $750 valued services with the kicker, “If a will is determined to be inappropriate for your needs, Groupon will be valid toward estate planning or other legal services.”

The St. Louis lawyer reportedly obtained preapproval from the Missouri Bar before participating. See “Law Life: Should lawyers use Groupon to offer discounts?”

What the South Carolina Bar said.

While the North Carolinans said “No” to “daily deals” for lawyers, this week, the South Carolina Bar said “Yes” at SC Ethics Advisory Opinion 11-05. But reading between the lines, the blessing was more backhanded than backslapping.

The question presented was “Does a lawyer violate the Rules of Professional Conduct by contracting with a website to offer vouchers that can be purchased from the website and then subsequently redeemed for discounted legal services such as the preparation of wills?”

The opinion implicated 8 different ethical rules including several advertising ones along with ER 1.15(c), which would require unearned paid voucher fees to go into a client trust account until actually earned.

However, South Carolina essentially based its approval on an analysis of ER 5.4, which prohibits fee-splitting with non-lawyers. Because such marketing programs are considered advertising, there’s no fee-splitting with a non-lawyer. And if there’s no fee-splitting, there’s no violation.

And under its second ER 5.4 analysis, South Carolina said that if even if fee-splitting with a non-lawyer was occurring, it’d still be O.K. Why? Because the “daily deal” offers wouldn’t interfere with a lawyer’s professional independence or judgment. There’s no control exerted on the lawyer’s delivery of services.

Questions of taste.

Interestingly, one thing both state bars signaled their agreement on, was the whiff of disapproval over the tastefulness of such lawyer advertising. In cautioning against “false, misleading, deceptive or unfair information,” South Carolina’s Opinion parenthetically opined, “[the] effectiveness and taste in advertising are matters of speculation and subjective judgment.”

Other bloggers have taken a similar tack. See, for example, “Ethics vs. Professionalism: Is Groupon Feasible for Lawyers …” and “The Scoop On Groupon for Lawyers” and “Lawyers Using Groupon”

In general, the mentioned bloggers didn’t seem keen on the “daily deal” approach. Their rationales were based on the potential ethical pitfalls, questionable taste, and especially, on the impracticality of offering discrete, finite legal services through such daily-deal websites.

“I’ll take two of those, please.”

But I also raise one more. And it’s this. The daily-deal websites overwhelmingly feature goods and services that enhance life, create fun and promote good times. The last time I looked, hiring a lawyer doesn’t fit those features.

Similarly, bargain root-canals or discounted funeral services also don’t fit the ‘Big Fun’ category either. For this reason, I can’t see customers queuing up to buy discounted child custody services or post-mortem planning or budget misdemeanor plea deal-making.

Here’s a relevant ‘for instance.’ Several years ago, I was dumbstruck at a charitable silent auction I attended in California. Walking through the displayed auction items, I stopped in my tracks at an unbelievable one. It was, as I’ll never forget, surgical services for a hemorrhoidectomy. I remember wise-cracking to the slack-jawed guy standing next to me, “I wonder how many bidders are going to say, “I’ll take two of those, please.”

Marketing’s slippery slope.

But as soon as some lawyers started their “Race to bottom accelerates as discount lawyers respond to economy,” only time stood in the way of others pushing further past barriers of taste, desperation, and “I’ll try-anything” ‘innovation.’ And in a nod to the times, even legal services on Craigslist are now prosaic. Also see “FREE DIVORCE or how much business you get when you give it away.”

And I’ve already grown accustomed to that lawyer’s wooden-staked cardboard yard signs around town advertising “guaranteed lowest price” divorces. (Don’t ask me how he can guarantee the lowest price).

I even imagine that somewhere there’s a lawyer extending his promotional reach through “Restroom and Urinal Advertisement.” So by comparison, riding down the marketing slippery slope to ‘deals of the day’ seems tame, even tastefully innocuous.

When times are tough, marketing schemes always abound, primed as they are to relieve the incautiously hard-pressed of their money.

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Photo Credits: “Proctologist Bull” by mikepetrucci at Flickr; “ESPN futbol” by Arturo de Albornoz at Flickr

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Wisdom or folly? Talking politics with clients.

I had a running debate with another lawyer the other day. It ended the way such ‘debates’ end when an unmovable object meets an irresistible force. You throw up your hands and “agree to disagree.”

It was over the simple question: “Should lawyers discuss their personal political views with their clients?” I answered “No” – - – emphatic expletive precedent. My colleague, a tax, estate and Medicaid planning lawyer said “Yes.”

His views were founded on his conviction that he could not otherwise do a good job for his clients “without involving politics.” As an estate planner and a tax guy, he explained his practice areas were ‘political footballs’ and part of both parties’ political platforms.

For instance, he asserted that when helping elderly clients, he had to be knowledgeably conversant with the political scrutiny attendant benefit programs like Medicaid or Veterans Aid and Assistance. As for taxes, awareness of trends was key, for example, if the government decided to raise capital gains tax rates to fund healthcare reform.

He also insisted he wasn’t “partisan.” But unlike my clients who care 2 nickels worth about how I vote, he claimed his clients were eager to talk politics with him. It was “unavoidable.“

And as he lived in a conservative part of the U.S., he maintained his views were “mainstream” with little risk of alienating like-minded clients. And if he did happen to annoy “a couple of clients,” there were plenty others to make up for any lost business.

Ethically consonant.

I had to concede the surface appeal of his argument. Furthermore, I knew it was ethically consonant. The Current Version of ABA Model Ethical Rule 2.1 “Advisor” states, “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

Comment [2] of the Rule is instructive: “Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.”

Practical considerations for the rest of us.

The estate/tax lawyer’s circumstances, however, may be unique, given his practice areas and geographic location. But what about the rest of us?

In October 2008, ABA Journal ran a “Question of the Week” and asked “Is Talking Politics at the Office Taboo?” The writer didn’t take a stand but solicited comments from readers. And granted the question was directed not at political talk with clients but among coworkers. Still, conceding how opinionated lawyers can be, the reader reactions were generally born of caution and of keeping discourse respectful.

My own views, however, are grounded in relevance “to the client’s situation.” Certainly the political ramifications of a vote in Congress may have bearing on a client’s legal problem. But a lawyer’s personal politics should have no import on solving that client’s problem. (I have a left-leaning lawyer friend who during the last presidential term, spared no one his invective for George W. Bush. Clients, opposing counsel, the deposition recorder – - – it didn’t matter).

Clients engage lawyers for legal services not to hear them wax on about the follies of the last or next election. Nor do clients want to hear the lawyer impart that a current Congressional person or White House occupant is a moron or a genius. And anyway, when it comes down to it there’s not a lot of difference from one to the next. Will Rogers was right about politicians, “The best thing about this group of candidates is that only one of them can win.”

And besides, as someone once said, “Politicians are like diapers. They both need changing regularly and for the same reason.”

And finally, clients aren’t going to welcome being billed for their lawyer’s ponderous political prattle.

Hyper-partisans like my Bush-hating friend should also guard against such passionate proselytizing. It can exploit a counselor’s supposed superior position and cower those perceived as ‘untutored.’

The other basis for my objection is more pragmatic. Not everyone has the ‘benefit’ of living and practicing in an echo chamber where our opinions pleasingly reverberate to reinforce our existing beliefs. So given the rabid partisanship that passes for political discourse and the equally ferocious moralizing that serves as cultural conversation, why would a lawyer dare alienate existing or potential clients?

Granted, there are lawyers like my estate planning colleague whose political persuasions redound with segments of his community. And such lawyers will happily gather up the like-minded flocks drawn to their shepherd’s call even at the risk of a few lost sheep who may wander off.

The lawyer as political eunuch.

But does feigned disinterest for client political conversations translate into advocacy for lawyers as political eunuchs? And what about the short step from politics to morality? Is there such a thing as the moral practice of law?

And is the public’s criticism justified when lawyers represent clients holding abhorrent moral, religious or political beliefs? At the time of the Civil War, Senator and later governor and jurist Salmon P. Chase believed it was immoral to represent slave owners. Were lawyers who advised slave owners engaged in the amoral practice of law?

But unlike in Chase’s day, today we can have it both ways. We can discriminate in client-selection. Or we can choose instead to hold our noses and represent the politically-noxious or morally-reprehensible. Rule 1.2: Scope of Representation provides an ethical out, “(B) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.“

In March 2010, Fordham Law School Professor Russell G. Pearce used “the question of why lawyers are more politically liberal than non-lawyers as a way to explore the foundation in political philosophy for the dominant conception of lawyers as amoral partisans and to consider whether engaging in moral conversation with clients is permitted or preferable.”

It was a CLE Course based on the 23-minute film, “Red State/Blue State: Lawyers, Politics and Moral Counseling.” See Red State, Blue State – Fordham Law.

But Red State or Blue State? I doubt there are any political eunuchs in the profession. When it comes to politics, lawyers can’t resist haranguing in the manner Clare Booth Luce ascribed to politicians, “The politicians were talking themselves red, white and blue in the face.” 

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Photo Credits: “Revolution is brewing” by dani0010 at Flickr; “Diaper change face” by Jason White at squant at Flickr; “Claims bought and sold” by Marion Doss at Flickr;

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The ‘first liar rule’ and how there’s not much new under the mentoring sun.

“The first liar doesn’t stand a chance,” is an old expression. And one I have long been fond of. [1]

So with that prefatory thought, I find myself challenged to properly attribute the following likewise admired quote, “Success has many fathers but failure is an orphan.”

For a long time, I thought it was something one of William Shakespeare’s characters said. But I’ve yet to find the precise quote in his works.

And of course, there’s the well-known “Victory has a thousand fathers, but defeat is an orphan,” which is a variant credited to President John F. Kennedy. However, I am fairly certain that it had its genesis elsewhere, derivative as it is from the more familiar quotation above.

Ask not.

Moreover, like a lot of what JKF’s given credit for, those soaring expressions often originated elsewhere. He was fond of cribbing from speechwriters, including even his famously acclaimed “Profiles in Courage,“ which in 2008, Kennedy’s speechwriter, Theodore Sorensen, admitted to ghostwriting. See “Sorensen Admits ‘Profiles in Courage’ Role.”

Indeed, for most of his lifetime up until Ted Sorensen, speechwriter passed away in October 2010, Sorensen was constantly asked how much of Kennedy’s famous inaugural speech was his and how much was Kennedy’s, particularly, ‘Ask not what your country can do for you’. Sorensen later came to deflect the repeated media queries by answering, “Ask not.”

Oft-repeated by a thousand fathers.

So all this said, I was recalling some of my favorite business, nay, practice tips gleaned over time from here and there. This was because of an interview last month conducted by The New York Times writer Adam Bryant with “Barry Salzberg of Deloitte, on Finding the Perfect Hire.” Salzberg is CEO of Deloitte, LLP.

Admittedly, business and job self-help gurus are especially guilty of rehashing the same gelatinous claptrap time and again. However, I thought 3 points made by Salzberg were worth re-mentioning.

They aren’t new or unique to Salzberg. I’ve seen them or heard them before. After all, you stay on the hamster wheel long enough and eventually you start noticing the same litter.

Out of the entire interview, the 3 salient “lessons” or take-aways were these:

1. “Pay if forward.”

2. “Brand yourself.”

3. “Get out of your comfort zone.” (i.e., “Don’t resist change.”)

They need no further elaboration.

Nine points on success.

Now more than a dozen years ago, I came across in a magazine, a quick ‘take-away’ on achieving ‘success.’ I tore out the clipping, which is now long gone. But I jotted down the 9 bullet points encapsulated therein since they captured the fundamentals of what I’ve also previously believed are essential truths of business and professional life.

Again, my apologies for not remembering or knowing the proper attributions. But then, in one way or another, these, too, like Kennedy’s thousand-fathered victory, have been said before and been paraphrased again and again. As the Scripture says, “. . . there is nothing new under the sun.” See Ecclesiastes 1:9

These, too, then have a thousand fathers and mothers. [2]

1. Toot your own horn.

2. Learn to negotiate.

3. Don’t be afraid to ask for help.

4. Learn to play the game.

5. Be well-prepared.

6. Learn to deflect the negative. (or the variation, surround yourself with positive-thinking people).

7. Lose with grace.

8. Be well-educated.

9. Be fair. 

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[1] I also savor James Campbell’s “Arrows of insight have to be winged by feathers of speculation” and especially, George Santayana’s, “Skepticism is the chastity of the intellect.”

[2] Keeping the ‘first liar’ caveat in mind, cognoscenti interested in providing or taking credit are welcome to share what they know about the source of these aphorisms.

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