Who would have guessed that a marketing shop called “Speakeasy Marketing” would involve something shady?
Friolo sued Frankel under the Maryland wage payment and collection statute, and the rest has been 14 years of trial and appellate history, including the appointment of a special master and three trips to Maryland’s highest court. A lot of the fighting has dealt with attorneys’ fees, specifically the reasonableness of requested fee-shifting under Md. Code Ann., Labor and Employment article, §3-507.2.
From the very recent opinion of Judge Wilner, specially assigned to this case after his retirement, I give you the first paragraph and last sentence thereof.
“This case is making its third appearance in this Court, having visited the Court of Special Appeals twice and having occupied the attention of the Circuit Court for Montgomery County on three occasions, one of which involved two separate proceedings. Like Kaufman and Hart’s man who came to dinner, it is wearing out its welcome….
“We would admonish Friolo and Goldsmith [ed. Plaintiff’s counsel] to be mindful of the risks of excessively gilding the lily and suggest to both parties that it is not too late to negotiate a settlement.”
For those poorly formed in the American theatrical tradition such as myself, this is a link to Wikipedia’s entry on The Man Who Came to Dinner. Since I have no culture, I probably would have gone with Groundhog Day.
As I have discussed elsewhere, I am a big fan of Clio practice management software for law firms. I have often wished that I had something analogous to manage non-professional household projects, though Evernote comes close. Especially since Clio made a major upgrade to its management of escrow accounts as few years ago (allowing exclusion of obsolete closed/zero files from escrow account reports), it’s been a pleasure to use.
Here’s my “wish list” for Clio next iterations.
Anything (within law, ethics and good prudence) that helps lawyers make more money, save more time and comply with ethical requirements more easily should be on the table. All of the foregoing aid the attorney on one of those three broad goals.
I am a pushy bastard of a customer; anything that affects my clients’ rights or trust money is a big deal with me. To its credit, Clio continues to innovate; this week it is launching a new billing platform and is marketing itself heavily on its ability to save attorneys time through its “what would you do with your #Clioday” [extra free day per week saved]”. Clio is clearly a company willing to innovate with its product and it’s been a pleasure watching over the last two years how the company has tightened and improved its platform. I don’t assume that any of these suggestions would be implemented at Clio, but if a couple of them made it into the platform over the next 2 years it would be great.
Mark Britton of Avvo.com thinks that I should market to my clients in a way that suggests that I want to kiss them.
Um, no. Lawyer jokes to the contrary aside, we are not sex workers.
I used to advertise with Avvo, and had a moderately favorable opinion of Avvo with some reservations. I feel “nice” about my so-called “Excellent” rating bouncing between 8.3 and 8.6, though I am aware of the preeminent Maryland attorneys who rank lower and purveyors of, in my opinion, vapid and/or dangerous nonsense like Lee Rosen of North Carolina who, despite public disciplinary censure, have a “Superb” rating of 10.0. But I thought that competition with Martindale-Hubbell’s rating system was a good thing.
Avvo lost my favor when I realized just how much damage Avvo was encouraging potential clients to do online by posting, without confidentiality or privilege, intimate details of their cases for every English-speaking opposing counsel, private investigator, detective and prosecutor on the planet to read. Most of my comments on their comment/question boards were to tell people to shut up and talk to a lawyer privately, particularly in criminal cases.
I believe firmly that marketing to clients “as if I want to kiss them” is unprofessional and beyond creepy. Maybe that works for selling fashion or perfume or fast cards. It is inappropriate for lawyers, even as a metaphor. Clients don’t want to be courted or romanced; they want confidence that the lawyers whom they hire to handle often the least pleasant things in their lives will be effective, competent, diligent and trustworthy. Maybe the “kiss” metaphor works for selling online marketing packages to young, desperate attorneys of weak morals, but in this office the business handshake works just fine.
Workers who receive severance pay are generally disqualified from receiving unemployment benefits for the period over which the severance accrues. This is true whether the severance is paid in a lump sum or in the payment method by which regular salary or wages were paid.
However, this is not the trap.
The trap is that severance is itself not subject to unemployment taxes; employers don’t pay premiums to the UI Division for severance. Severance is subject to income taxes and FICA, but not to UI taxes.
Why does this matter?
A worker who receives severance may fail, particularly if the severance period is lengthy and if the worker is in a higher-income field where jobs pay well but are scarce, to earn 10 times her weekly benefit amount in UI-taxable wages during the applicable benefits year as required by statute. In practice, someone on severance can earn out her severance, become eliglble for unemployment and then be disqualified. Further, if the worker contacts the UI Division for unemployment benefits during severance, it may work as a Catch-22: the worker has established a benefits year during which no benefits are payable (due to severance), then may be “gotcha-ed” out of a more favorable benefits year due to the lack of earnings.
The problem is that UI Division publications encourage workers to apply for benefits immediately upon becoming unemployed, whether they are getting severance or not. For some workers, that advice is counter-productive, or at least deserves closer review and additional advice from legal counsel. Someone receiving severance is “unemployed”, but just disqualified under most circumstances. There is no provision to “fix” a poorly-chosen benefit year; it must start from the first claim/application for UI benefits.
Bottom line: if you or your client may be getting severance, don’t apply for UI benefits without first undertaking careful, detailed analysis of what the eligibility requirements are for that worker not in theory, but in practice.
Sexual harassment cases under Title VII are difficult for many reasons. The alleged harassers are often mortified by the accusations, regardless of the degree of truth or falsehood therein. The claimants are generally hurt, angry and financially wounded, often humiliatingly so. Reputations of alleged harassers and claimants are on the line, especially in image-conscious professions like finance, law and politics. Juries vary in their level of sympathy for claimants and alleged harassers. The facts in some harassment cases are usually distasteful and sometimes, in the era of the publishing and photo studio that is the text message app on most cell phones, outright disgusting, outrageous and frightening. A lot of money can be at stake, particularly when a young claimant is beginning a high-income career and gets her career derailed. In addition, recent jurisprudence (Vance v. Ball State) makes it a good deal harder to take action against mid-level management abusers without an “according to Hoyle” and possibly career-jeopardizing formal report to management by the worker.
I know honorable attorneys who represent management, though it pleases me to have my clients and not theirs.
When a pre-eminent blogger sets her sights not on the target-rich environment of corporate sexual predators, abusers of young, low-wage workers who don’t know about law and don’t know any lawyers, on-the-job sexual assailants, but on … a high schooler who took a long shot and asked Miss America out on a prom date, what’s a working sexual harassment plaintiff’s lawyer to do? Start drinking scotch at 7 AM?
It’s conceivable that a celebrity would accept a long-shot prom date. The prominent actress Mila Kunis accepted from a stranger and Marine a date to a Marine Corps Ball, a formal event comparable to a high school prom. Last month, ESPN host Michelle Beadle accepted the prom date offer of Jack Jablonski, a high school athlete who suffered catastrophic injuries during a ice hockey check gone horribly wrong. Actress and model Kate Upton similarly accepted a prom date offer last year. I do not think that the young men in these cases deserve reprimands or moral reproach. Nor did the young man who extended the prom invitations to Miss America, aka Ms. Nina Davuluri, who visited Central York (PA) High to urge students to consider careers in science, math, engineering and technology. For its part, the Miss America Organization has asked the school system to rescind the suspension that the school imposed on him for asking this brilliant, unmarried woman out on a date.
Sexual harassment is about power. What power does some high schooler have to damage a visiting Miss America with one (admittedly long-shot) offer of a prom date? I look at my married clients with children who have lost their jobs and sometimes their houses from the retaliation by their harassers, who have suffered sexual crimes, and I just shake my head. Miss America can handle the worst that Central York High’s most incorrigible optimist can throw at her, and did so with exemplary grace. For my clients who have suffered actual – not ideologically contrived and “constructed” – harassment with ruthless retaliation, humiliation, fear and outrage, it’s no invitation to the prom.
This is a brief update on the happenings here at the law office.
1) GayLawNet.com. The Law Office has registered its Reisterstown office with GayLawNet.com, a international directory for LGBT and LGBT-friendly legal resources. According to its mission statement, GayLawNet.com provides access to the latest LGBT legal news and the “simplest access to a gay or lesbian (or gay or lesbian-friendly) attorney….” I note to avoid misleading potential clients that the practice is LGBT-friendly but not LGBT-owned.
This affiliation is consistent with the LGBT-friendly policies of the Law Office from its 2009 opening and its affiliation as a Maryland/DC Cooperating Attorney with Lambda Legal.
2) Mentoring through the Maryland Center for Professionalism. It was a great experience serving as a mentor through the Maryland Center for Professionalism’s mentoring program last year; I may have the opportunity to do so again this summer with the new admittees in June.
3) Pro Bono Success. A pro bono client of the firm enjoyed a victory in Circuit Court in Baltimore County this week. More info to follow. Other pro bono work through the firm continues, including one federal case as local counsel, several referrals from MVLS and routine work at Jewish Legal Services in Baltimore (on hiatus for April due to the Passover holiday.)
4) A personal note.
Running a law office isn’t easy. Running a solo law office that charges affordable rates to real people, while co-parenting two autistic pre-teen sons 6 nights out of 14, is not easy. But it’s absolutely worth it.
In the last six months, I have experienced and seen things that I never thought I would experience and see, the sorts of things that one doesn’t just blog about. And I am not referring to the record cold weather and volume of precipitation in Winter 2013-2014, as intense as those were. I refer to the opportunity that I have had to take stock, at now age 45, and observe what matters most.
Success isn’t about money. Money is important – both to me and to clients, of course. But money isn’t success. Success is living with meaning and without shame, with pride, with full appreciation and gratitude for what one has, whether it’s Donald Trump’s towers or an honestly-earned bowl of bean soup. It means having a relationship with the mirror such that you look forward to the face looking out of the mirror at you, whether it’s in a fancy bathroom or in a modest apartment in a run-down neighborhood. It means that you look into that mirror and see a human face, and not some cracked Picasso deconstruction of a “face.”
What matters most to me is that I get to remain self-employed, so that I don’t have to negotiate with a bean counter or a clerk when I need to take care of my autistic sons when one of them is sick. With a court clerk, maybe, but not with a corporate functionary. Fortunately, as an attorney I can be self-employed; an assembly line worker needs a corporation with an assembly line, but I don’t. By being self-employed, I can turn down senseless legal work that another lawyer wants done just to churn the bill, even if that means ripping a client off against one’s better conscience. I can speak the truth without fear that I will lose all my clients; I might lose one client, but there is no boss telling me to “churn the file” or I am fired and lose all my clients.
Self-employment has its challenges, as anyone who has prepared form Schedule C, form 1065 or form 1120S knows. But self-employment, despite its “fragility”, is actually robust or even “antifragile” (i.e. actually benefits from challenges and stresses) against many types of challenges, per the terminology of Nassim Taleb. It’s relatively robust against stresses of many unforeseen family and personal events (though not absolutely so.) It rewards creativity and disciplines the attorney to take responsibility in a way that an attorney more shielded from consequences, with less “skin in the game”, without her name on the front door every day, might not learn.
The people to whom I am grateful are, of course among others, my clients. They have given me the chance and the trust to do meaningful work and to enable me to live a meaningful life as an active attorney and parent of special-needs kids. I am grateful to colleagues and friends in the profession who have entrusted my modest practice with their clients’ care. I am grateful to loved ones, whose support through many challenges, professional and personal, has meant so much.
An attorney acquaintance of mine, roughly my age, once approached me about forming a partnership or alliance with other attorneys. He and I gave a presentation together at College Park to students considering law school a couple years ago (yes, I tried to dissuade them, but also gave them some useful info.) My colleague had served in the military as a JAG officer before going into private practice in an urban setting in Maryland, handling most criminal defense work. He is a very dynamic, high-energy guy. And he is handling a current professional and personal challenge: the loss of one leg in the two weeks or so after a catastrophic car accident.
Human nature is to complain and compare one’s own lot to others’; the whole “grass is greener” tendency known to the ancient Greeks and evidenced in today’s daily life everywhere. Yet I have two legs, and deserve them no more than my injured colleague. I survived the risk of dying in a car crash, while my dear law school friend Nancy Yellin died in her third year of practice, when a drunk driver struck her and other members of her family dead. I deserved my good fortune no more than did she and perhaps deserved it less. I have survived the risk of cancer, so far, when contemporaries of mine have fallen to cancer or suffered greatly from it. Other examples abound.
The point of all this is that I feel exceptionally lucky to be alive, to be an attorney in a basically free and largely (though NOT completely) fair society, to have good enough health to practice law, to get to practice in a way that I get the chance to “do good” and also “do well” while remaining a family man and father to my boys and an active co-parent with their mother. I feel lucky, most fortunate.
Lawyers don’t often talk this way on their websites, about gratitude; mostly, lawyers talk about how great/aggressive/experienced/yawn/yawn/zzzz they are, and bore their readers to death. I think a lot of us lawyers need to talk about gratitude more, if only to encourage the others, to humanize us and humanize the profession. We are human. Pretending we are not human is a false front; human is what we are, for better or worse, and we should not be in the business, as attorneys, of false fronts about what we are. If we are human and alive, we should feel fortunate that that is the case.
It’s spring now. The Orioles are 1-0. And I feel lucky to be alive, to be a father and practicing law. If you have any connection to my practice, as a family member, friend, client, attorney, vendor, judge, neighbor, even a prosecutor or opposing counsel, thank you. You are part of why I feel very fortunate.
In February 2014, following oral argument in January, the Maryland Court of Appeals disbarred an attorney for emailing a number of attorneys, including long-time former Attorney Grievance Commission member George Meng, Esquire, defamatory claims of corruption regarding a number of judges and elected officials including the Attorney General. Opinion of Judge Greene in Attorney Grievance Commission v. Frost here.
Couple of points.
In his dissent, Judge McDonald noted that few attorneys and judges have not commented on the “parentage” of a judge after an unfavorable or disagreeable ruling. The dissent, Judge Adkins’s concurrence and the majority opinion all note that truthful speech protected under NYT v. Sullivan’s First Amendment jurisprudence would not violate Rule 8.2. Judge Adkins goes further to express concern that mere in-office comments or private comments to a spouse about a judge should not generate “word police” supervision by the Court of Appeals (by logical extension, Bar Counsel and the Attorney Grievance Commission.)
Judge McDonald expressed concern that the Court of Appeals should not disbar an attorney through the use of mere pretrial requests for admissions of fact under the Rules of Court; he would have suspended the attorney and remanded the matter for a fuller evidentiary hearing. Judge Adkins did not agree with Judge McDonald on this procedural point. Million dollar judgments can issue from facts admitted my failures to respond to requests for admissions, but this might be a different issue to the extent that the Court of Appeals itself is, in a sense, a party holding at least a trustee interest in the protection of the Bar.
This case involved defamation that a) accused the bench of corruption and not mere incompetence, indifference or obstinance, b) had no known factual basis, c) was not explained in any manner by the attorney in question, d) had no mitigation on the record, due to the failure of the attorney to participate in the proceedings, e) was emailed to many attorneys, including the aforementioned preeminent Mr. Meng, f) involved no advocacy for a client or other fulfillment of any other ethical duty, and g) reflected arguable instability on the part of the author, as suggested in the dissent. Most Rule 8.2 violations will not involve such concerns.
The Court of Appeals has, in my view wisely, not entertained making adultery or sexual relationships in themselves ethical violations unless they involve ethical conflicts in client case work (e.g. divorce cases.) Many attorneys divorce, and some who divorce do so after an extramarital affair or otherwise become intimately involved before a court of equity has signed a decree of absolute divorce. Adultery remains a crime under Maryland law, though one with a maximum fine less than the new proposed state minimum hourly wage of $10.10 per hour. If Bar Counsel found itself drafted into the role of bedroom police, particularly within or after possibly acrimonious divorces involving Bar members, the family lives of attorneys and staff in that office might themselves face strain from the overwork and case volume.
In similar vein, the concern that the Court may find itself compelled to act as the “word police” over the Bar is legitimate, but in my view not realized in the holding in Frost. This case involved a number of facts so extreme and unusual that it is easily distinguishable in future cases involving allegations of improper comments by attorneys, and certainly distinguishable in terms of sanctions in most such cases. The Respondent did not participate in this case; the Court accordingly entertained none of the often-referenced ABA-suggested mitigating factors in its sanctions analysis, not even whether the Respondent had a disciplinary history. In most cases, an attorney default wouldn’t happen; most attorneys want to remain attorneys or to leave the profession by means other than a hard sanction.
In short, though attorney friends of mine have expressed some concerns about AGC v. Frost, I don’t view this case as a threat to the civil or professional liberties of attorneys, short- or long-term.
UPDATE: Check out the much more critical analysis of Indiana attorney Paul Ogden, Esquire, regarding this disciplinary case.
In 1997, a drunk driver killed my closest friend from law school, her brother, her sister-in-law and her infant niece in a one-crash accident in a residential neighborhood north of Miami right around “bar time.” The drunk driver fled the scene, having in no manner attempted to render aid to the wounded or even to have called the police, the fire fighters to douse the burning car or the EMTs to the scene of the crash. My friend had gone to the airport to collect her family and bring them home from a late flight arriving in the wee hours; the crash occurred within about a mile of her parents’ home on the ride back. The drunken motorist has been serving a life sentence arising out of the incident.
Over 16 years later, after one marriage, one divorce, two sons with autism, several major career metamorphoses, the relocation of my residence maybe 7 times and many personal lows and highs, it still hurts. I don’t think about my friend daily now, but rare is the week when I don’t think of her.
I represent accused drunk drivers and do so without apology. It is necessary work constitutionally and deserves to be done well. The accused deserve competent and diligent representation; “competent” and “diligent” aren’t a brag but the merest ethical “opening bid” for practicing law. But the following is about not hiring me or any other Maryland attorney for a DUI charge, by not catching the charge in the first place. St. Patrick’s Day is less than 10 days away and a lot of fools use it as a rationalization for driving drunk.
Cabs look expensive, but aren’t. Okay, $100 cab ride is epic, but if you get held on a DUI bail (not that common in MD but it does happen), you are going to kill that amount and more on the fee to the bondsman before you get sprung. The highly skilled professionals at Big Boyz or Fred Frank or Busting Out All Over Bail Bonds have one thing in common: not a damn one of them is a pro bono operation. You will lose that cab fare before you get sprung. If you can get sprung, if you aren’t in a hospital cell with a deputy watching over your wrecked, burned body.
Lawyers are expensive. Even cheap lawyers are expensive; some say that a cheap lawyer is the most expensive thing ever invented. When you get a services agreement from an attorney, even if there’s no “accident”, even if you have no priors, you are probably going to have to tap savings or get a loan from somebody. If you can afford to get lit on St. Patrick’s Day, you probably aren’t indigent, which means that you probably shouldn’t be a public defender client.
Rehab and alcohol treatment cost money. My favorite alcohol assessment resource in Baltimore County is very good and costs around $200.00 to open, and the weekly visits won’t be cheap either. Does the $100 cab ride back home look cheap?
Then there’s the interlock. Without getting into the specifics of Maryland law, refusing or failing the breath test may result in pre-trial license suspension, unless the motorist arranges for the installation of an interlock device. The interlock isn’t free; the providers of interlock installation and monitoring aren’t Communists or hippies. If you live in the suburbs and you face a license suspension, you may lose your job if you cannot drive to work. More money for the install and for the monthly monitoring.
There are the indirect costs of lost time. If you need to go to an AA meeting on direction of your attorney or your alcohol counseling provider, that’s time you cannot bill/earn on the clock. If you need AA you should absolutely go there for its benefits, but AA meetings have set start and stop times; when you are there, you aren’t earning.
It should shock no one to learn that GEICO’s Gecko and that camel from “Hump Day” aren’t exactly looking for an opportunity to do business with drunk drivers. They hate paying out money and drunk drivers are nothing but liabilities to them. While you might not get cancelled, you will probably suffer severe consequences from a drunk driving charge on your rates. Do you want to cover the costs of the town drunk’s wreckage? Neither does “Hump Day” or the lizard.
People do go to jail on first-time DUIs sometimes, even in relatively moderate Maryland. The bench in Baltimore County has shown an increasing willingness to jail defendants at least briefly on jailable traffic offenses, especially for DUI defendants who show up to court with no alcohol treatment plan in place. If you are convicted or found guilty, you will be fined, have to pay probation fees and related costs.
Then there are the intangibles. A lot of fair-minded people don’t want to date someone who drives drunk. If you get caught drunk driving, you may have to face the humiliation of your spouse seeing you having done this stupid thing. Your infant children won’t know (if you are lucky), but your teenage children will lose respect for you (as they probably should.) Your boss, if she finds out (and she probably will), may conclude that you are a screw-up and cannot be trusted with more responsibility. You may find it difficult to face yourself in the mirror after you come home.
If you are religious, you will probably have to account for this act of recklessness in your religious life, as no religion makes peace with getting drunk and risking other people’s lives. Specifically, the Catholic Church (which, after all, canonized St. Patrick) condemns drunk driving and reckless risk to human life generally in its Catechism of the Catholic Church:
…one is not exonerated from grave offense if, without proportionate reasons, he has acted in a way that brings about someone’s death, even without the intention to do so. (2269)
Those incur grave guilt who, by drunkenness or a love of speed, endanger their own and others’ safety on the road, at sea, or in the air (2290).
No moral or disciplinary law of the Catholic Church requires drinking or eating anything on St. Patrick’s Day, which falls during the ascetic and penitential season of Lent in the Roman Rite calendar.
Maybe the biggest intangible should be the end of your life or the life of another person. Drunk driving fatalities aren’t a talking point; they are physical piles of dead human flesh that EMTs have to drag and bag out to the hospital or the morgue. Some poor soul has the job of counting, identifying (preliminarily) and removing the road kill of the drunk driver. That roadkill could be you, if you drive off the road and your car catches fire in a crash. You could kill some teenager, some family of four. Drivers’ licenses numbers should start with 007; every license is, in a certain sense, a license to do something that sometimes kills people. Maybe this video can make the point more concretely than I can:
Hat Tip to Scott Greenfield, Esquire.
If you really need to party on St. Patrick’s Day, please be sensible. Restrain your consumption, or be the designated driver. If that doesn’t work, get a cab and if necessary a hotel/motel room, sleep off your drunk watching reruns of Seinfeld on the hotel TV. Get drunk at home and carry on there, if you must.
If you have to do something stupid with a piece of equipment while drunk, then “drunk dial” and not drunk drive. You may annoy your “ex” with your drunken call, or cause yourself other embarrassment with your boss, but at least they won’t have to attend your funeral and you will be around to face your humiliation. If you think you shouldn’t drunk dial, then dial the cab.
Nancy Sara Yellin, 1969-1997. May her family and those of her brother, sister-in-law and infant niece, be comforted.