commentary

Aug

2013

I Observe Big Butts and I Cannot Lie: TotalAttorneys’s Deceptive Cold Call Today

The rule of honesty for attorneys needs to be The Rule in Sir Mix-A-Lot’s Case.

If a casual acquaintance, seeking to buy a dress or suit, asks whether the dress or suit makes the buyer’s derriere appear more plump, the superficially polite response of the observer might be a less than candid “well, I don’t notice any such thing.” This would fall under the category of lie that in the Catholic Church is called a “mental reservation” or in the Jewish tradition as a lie to preserve “shalom bayis” or peace in the home. A similar example would be stating to a cold-caller that “Mrs. Smith/Attorney Jones is not available” when they are available in a certain sense.

A friend – not a Hollywood friend or mere acquaintance but a real friend, the sort of friend who tells you difficult news to your face out of good will – will find a warm-hearted but direct way to tell you, if she or he believes it true, that that suit or dress may be a poor fit and that another choice would better flatter your curvature.

The attorney – YOUR attorney – on the other hand, has to tell you the truth. If you are charged criminally you need to your attorney to tell you how you are exposed, if you are exposed – NOT to make you feel better. You owe it to yourself and your attorney owes it to you to be able to make certain decisions with “informed consent” – enough information to allow you to exercise reasonable judgment. If your attorney observes your big butt, so to speak, she must tell you that it is as big as it is, and that the dress or suit is an innocent bystander. Maybe your psychologist or priest doesn’t owe you full candor on every single issue for your psychological or spiritual benefit; I don’t know, go ask them. But on the decisions that matter, giving you feel-good nonsense (or feel-bad nonsense, if it is nonsense) on substantive, material issues on your case is unethical to the extent that it impedes your ability to make the decisions that you need to make.

An irritation in my main areas of practice is callers who call for a family member, particularly a family member who isn’t in jail and is over 18. More irritating are callers who pretend that they are the client, but then at some point confess that they aren’t the employee, but the employee’s girlfriend (after several minutes of “I” and “my job” deceptive nonsense.) I hate it, but I expect it to continue; clients’ family members and “comares” will continue to engage my time under false pretenses and it’s on me to flush those callers out of my practice.

What I don’t expect is that a legal marketing company will front as if it were a law firm itself. That I didn’t see coming.

I got a call today from area code 312, Illinois. Midwesterners may recognize that number as a Chicago number but I am from Baltimore and as far as I am concerned, Chicago doesn’t really exist. New York exists; Philly exists; DC exists and Baltimore is the center of the universe. Chicago doesn’t exist. But Chicago called me.

A voice of a young man called saying that he was looking for criminal lawyers in my area to whom to make several referrals, that he was handling matters for the office of attorney Kevin Chern (it was hard to make it out but I got the spelling later) and he wanted to set up appointment times for the clients. I expressed interest generally, but requested that the law firm send me some information by email, that I needed to make conflict checks against my own caseload and that Maryland was strict about ethical conflicts involving co-defendants, such that I’d probably have to make a referral of any co-defendants to local counsel. I indicated that Maryland was not a large statet but that I preferred to handle matters within a 30-mile radius of my office or Baltimore generally. The young man sounded disappointed but said that the matters were for Baltimore City as best as he knew, and that he would have a Mr. Pistorius contact me with more information.

I got the following email from a Brian Pistorius maybe 20 minutes later or so.

So this wasn’t a law office, but a marketing company pretending to be a law firm through the ambiguity in English between “office of Attorney Joe Blow,” from which one assumes logically that an “office of attorney” is “an attorney’s office” as defined under the applicable parts of e.g. the Maryland Lawyers’ Rules of Professional Conduct. I note that “Total Attorneys” is a marketing company, not organized as a law firm; they are an internet marketing outfit that also bought out attorney Stephanie Kimbro’s online virtual law firm software platform a few years ago.

Kevin Chern, as CEO of this regular business corporation, is knowingly or un-knowingly allowing his reps to present themselves as his personal agents and only secondarily (in Pistorius apparently reluctant case) or not at all (in the case of Joel the cold-caller) as representatives of Total Attorneys marketing shop. My questions – about attorney ethics, demanding written confirmation of the identity of the cold-calling shop – blew their cover. Both Joel in his tone and Pistorius in the sort of sad-sack tone of his email reflect that they probably knew they blew the sale.

I note how Pistorius refers to Chern as “my attorney.” No, wrong. Chern is not your attorney. My clients can call me “my attorney.” Chern is Pistorius’ boss as CEO of the company, not “my attorney.” “My attorney” has a pretty big national presence – really? I hope that this blog post makes it a lot bigger. Sure, Baltimoreans are calling Mr. Chern’s Chicago law office. Right. Riiiiiiight. “My attorney.”

I don’t expect a legal marketing company’s agents to misrepresent what their principal is. I REALLY don’t expect an attorney to allow such nonsense to happen. So this was my response to Pistorius. Sorry for the misspelling of “Chern”

Total Attorneys, I don’t know how thick your butt is but your ethics are thin.

Aug

2013

Let’s All Help “Pat Barnes” Find Decent Employment

I pity “Pat Barnes”. He or she is a representative of a company that wants to sell me, an 18-year member of the Maryland Bar, a plaque commemorating my 15th year of membership in the Maryland Bar. And be darned if she or he isn’t persistent:

I have gotten maybe half a dozen of these emails this year, two of them on consecutive days last week.

They want $159.00 for this hunk of self-congratulatory garbage, but will “let me have it” for $50.00 off.

I feel like I should be organizing an intervention, whether for Pat or for the attorneys who, 15 years into practice, would apparently be such wounded narcissists that they would feel a deep-seated need for this hunk of wood on their wall to assure their clients that, yes, they are practicing attorneys of some duration.

Can someone please get a headhunter to help Pat Barnes get a job cold-calling for timeshares or overpriced lighting fixtures or something?

Aug

2013

Professionalism vs. Zero-Sum Thinking

I don’t think I have anything particularly special to say about professionalism as such. All of us can grow and learn. Well, maybe all of us have growing and learning to do; whether we “can” is another matter. I know I still have a lot to learn, even 18 years into this way of helping people and making a living.

Attorneys aren’t known for their small egos, generally. To survive in this profession you have to have a reasonably strong personality, even if you don’t do trial work. In transactional work, you have to have the confidence that your estate plan, your trust document, your $750 million bond indenture document all will survive scrutiny, future litigation and other regulatory or administrative review; that takes a certain amount of raw nerve, knowledge, confidence. But one of the most gratifying things I have noticed, 18 years in, is that attorney egos are mostly big in the healthy sense: balanced, strong, not vulnerable to the daily buffeting. 10,000 lawyers-as-jerks jokes aside, most attorneys seemed to me like pretty balanced and secure people in my experience, even the ones with whom I might not have excellent rapport or communication. This is saying a lot, given the combative nature of some litigation and the level of alcohol and other problems in the profession.

Perhaps it’s because of my own highly unusual career path, but I haven’t seen a whole lot of toxic insecure envy in the profession. Some, occasionally, but not as much as I might have expected, given lawyer jokes and the stress of the profession. I don’t have any great insight into the human condition or into the lawyer condition, but I suspect that the ideals of professionalism – not codified but sort of carried along implicitly – help keep this out.

There’s no way for any lawyer to be the only lawyer in town. Why? Because, adult name changes aside, most legal work affects the legal rights or interests of other people or legal entities. Conflicts of interest require those affected parties to be warned and sent to other attorneys in most cases. Maybe a pizza parlor could try to drive out all other pizza parlors in town, but a law firm cannot drive out other law firms. Even within a sub-field of practice, ethical and practical conflicts make it impossible for the profession to bear a local monopolization into one provider of legal services in a given field.

Take unemployment insurance hearings, for example, a field in which I practice routinely. I cannot and could not do “all the hearings” even if I wanted to. For one thing, there’s only one Godfrey and there are 16 hearing locations in this state, some over 100 miles from others. For another, I would have ethical conflicts between clients because UI isn’t the only practice area in my practice. Although I almost never represent management and have never done so in an unemployment hearing, I can be conflicted out of a given case or cases for many reasons. If I staffed up to handle more hearings, the conflicts would grow exponentially between clients and attorneys in my hypothetical employ, though perhaps scheduling conflicts would be reduced somewhat.

The point is that there’s no way to monopolize any segment of law practice. The Bar can only function in numbers for that reason and for many others.

What makes a profession is the chopping-off of substandard modes of practice, through licensure, certification or other standards enforcement. While non-professionals may aspire to a professional attitude in their work, that (honorable) aspiration doesn’t make their work part of a profession. Making pizza isn’t a profession, even if a given pizza parlor enforces its own ruthless standards in-house; that’s great, but that’s not a profession.

In law, success isn’t zero-sum but a battle for continued improvement, whether one represents tenants in landlord-tenant court or civil rights plaintiffs before the United States Supreme Court. It’s a battle perhaps against our own flaws, not primarily against the lawyer down the road (maybe for one case, but not for a career.) Lawyers talk about standards, not about market share; market share is a sales or marketing scoring item.

Part of what keeps the profession out of zero-sum thinking is the required and practical confidentiality of much of our work, especially much of our most critical work. You can find out a sales rep’s sales figures in many cases; companies will sometimes publish them or give out awards. While mega-firms may award bonuses for high billable hours figures they don’t publicize their compensation structures broadly (though some information leaks out, it’s not on media releases.) Even the lawyer-client relationship itself is confidential in many cases. Many a civil settlement has concluded quietly without a public footprint or notice. Many a white collar criminal investigation has concluded through the timely and wise actions of defense counsel early in the process, without a public footprint.

Early in my career I read Jay Foonberg’s classic books How to Start and Build a Law Practice and How to Get and Keep Good Clients. In those books, Foonberg mentioned that he did not see his fellow attorneys as “competition.” While opposing counsel in a given case may be, in a sense, competition, we attorneys shouldn’t view each other in the way that commercial enterprises may at times view each other regarding market share. It’s not a zero sum competition but more of a struggle against our own most recent best standard or our own shortcomings. Fortunately, the room for growth is always there.

Aug

2013

Dan Friedman on the Jones v. Anne Arundel County decision

Sometimes legal issues have public “sizzle”; sometimes they are a little dryer and of interest primarily to true legal scholars. My law school classmate Dan Friedman, author of a major reference text on Maryland constitutional law, has written in The Daily Record a critique of the reasoning of the Court of Appeals in Daryl Jones v. Anne Arundel County, regarding the power of the Anne Arundel County Council to pass a law to fill the practical vacancy on that council of a seat occupied by a councilman who served a period of several months’ incarceration due to his failure to file personal income and employee withholding taxes for several years.

The article lies behind the Daily Record paywall but Dan was kind enough to forward me a electronic copy of the article; I will not reprint the article here out of respect for the copyright of the Daily Record, as Dan’s forwarding it to me would in my view fall under fair use privilege but my reprint here of his copy probably would not. If you don’t subscribe and don’t want to spent the dollar, go to the public library and take a look at it; it is page 15A of the Monday, August 5, 2013 issue of The Daily Record.

I would be tempted to write a casenote of the case as part of my “Major Maryland Cases” series but my effort wouldn’t do the matter justice. This is Dan’s wheelhouse, but I will try to summarize his points.

Three issues presented themselves in the case:

did the Council have the power to pass the law that it passed,
did Councilman Jones move his “residence” outside of his councilmanic district when he served his federal sentence, causing his seat to be vacated, and
did Councilman Jones lose his ability to challenge the County Council under the doctrine of unclean hands.

The Court’s majority answered each question in the negative, while the dissent argued that there was an insufficient record by which to determine whether the clean hands doctrine applies and that the legislative history of the Anne Arundel County Charter indicated that “residence” meant actual residence and not domicile (i.e. permanent intended residence, presumably for Mr. Jones his home in Anne Arundel County and not federal prison.)

Dan criticizes the majority opinion for its apparent prohibition on charter counties from passing “special laws”, i.e. laws written merely for one person, as opposed to “local laws” applying more broadly. Dan argues that three paragraphs of the majority opinion regarding “special laws” are poorly conceived insofar as charter counties, unlike the General Assembly of Maryland, should not be considered to be banned from making “special laws”, and that prior precedent holds that a local law may affect a class of persons numbering exactly one member if an important public concern is at stake. Dan further suggests that the paragraphs regarding special laws in the opinion may be dicta, i.e. speculative commentary not necessary to the decision and therefore of no value as precedent; the majority opinion held that Jones had not changed his residence and was not prohibited by unclean hands from bringing the case, so the special laws discussion wasn’t necessary to the holding that Jones retained his seat.

Go give your brain a workout; read his piece – twice, maybe three times. It will convince you that Dan Friedman belongs in service to the people of Maryland on an appellate court (though I was convinced of that quite a while ago myself.)

commentary

I Observe Big Butts and I Cannot Lie: TotalAttorneys’s Deceptive Cold Call Today

Let’s All Help “Pat Barnes” Find Decent Employment

Professionalism vs. Zero-Sum Thinking

Dan Friedman on the Jones v. Anne Arundel County decision

Get Godfrey On the Phone!

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