commentary

Jan

2013

Towards making pro bono work “stink” less

A valued friend is about to take on a major pro bono leadership role in Baltimore City, and it’s my hope that she will continue to speak to me after I note that a) pro bono often stinks, b) we lawyers should do it anyway and c) we can do things to make it stink less.

Pro bono doesn’t stink merely because we don’t earn our regular professional fees (or any fees; Maryland Rule 6.1 denotes as “pro bono” services done without compensation or at substantially reduced compensation.) It’s better to earn than not to earn of course, but the fee or lack of it doesn’t make it “stink” alone. I don’t know any lawyer who remembered a year later that he or she took a haircut on a fee, but we never forget what it is that makes pro bono cases stink when they do stink.

The legal market, teeming with lawyers both competent and otherwise, will tend to swallow good cases and clients, especially in deep-pocket consumer cases where a court may award attorney fees in Maryland and most other states (wage collection, security deposits, consumer violations, etc.) and leave the “dogs” behind. Part of what makes a good case is a half-way cooperative client, and lawyers are understandably reluctant to take on a client who telegraphs that she or he has no respect for the lawyer, her time or her instructions. This sort of problem can be worse with clients who don’t pay and don’t have economically viable cases, in my experience.

You have a greater chance of dealing with hurt feelings cases – I don’t mean true traumas but trifling foolishness. When there’s no money in the case, it’s often about hurt feelings. When there’s money in the case, especially an injury case, attorneys will even front costs sometimes to get the case. You didn’t go to law school to process trifling foolishness.

Sometimes, the same dysfunctional causes of being unable to pay also create a specifically dysfunctional client. This is not polite to note, but is sometimes true. Why cannot the client pay? Because once you have been caught kiting checks for dope and you do 9 months in the women’s reformatory, Bank of America doesn’t want to give you full-time job. Now the client wants to sue her neighbor over a dope-drenched fistfight with injuries for which medical assistance paid the bills, and wants you or me to do it for free. Because, you know, you and I are there to assist with neighborhood beefs.

Pro bono agencies make it harder than they need to sometimes. For example, it took multiple beggings and pleadings to get one pro bono agency to sign a letter indicating that my client was their client for purposes of getting the fees waived at District Court. That waiver letter should have been exhibit A in the pitch to sell me on dedicating my time and money to the case; they should have had the letter ready to go in the packet before they found my number. Ever hear of mail merge? Getting a pro bono agency even to pick up the phone and return a call can be a major undertaking, in my experience, though this is not a universal problem.

One of the most demoralizing things about pro bono legal work, for me, is the realization that I was perhaps skilled in the minute details of a case, but macro-useless in solving my client’s real life problems. Example: in law school, my legal clinical program put in a great deal of time fighting mega landlords Stanley Rochkind and Bud Wrunkles in landlord tenant court at Eastside District Court for a pregnant tenant who had two kids and a rowhouse rental with a door with no hinging/posts, a hole in the roof, a non-working kitchen and major other problems including plumbing. We did a site visit; it was pretty wretched and was ironically less than 3 blocks from the Eastside District Court at North Avenue where we litigated. I remember how I put on my final exam for the course that I questioned our usefulness, that I thought we needed to rescue her from this disaster and that teaching her a useful skill like how to use Microsoft Excel would have been a better long-term use of our talents than beating Rochkind in one case. If Mom could get hired, she could move into a neighborhood with more-or-less code-compliant housing; we were spinning our wheels as a law school clinic because her case, not her life, was our defined problem and arena of alleged, professor-supervised competence.

If you do pro bono, the organized Bar may thank you. But if you are in private practice, you have essentially taxed your other paying clients in terms of time or implicitly in money (i.e. the pro bono cases’ overhead gets amortized among your paying clients.) Perversely, the paying clients may treat you better because paying money has a disciplining effect on both the selection of clients and their behavior going forward.

On the other hand, the fact that pro bono work sometimes stinks does nothing to relieve the attorney of the hortatory obligation to support pro bono efforts under Rule 6.1. People actually do need real help – even the people who treat their free lawyers badly. Accordingly, I offer the following humble suggestions as a solo practitioner towards making pro bono work stink less.

1) We, the working lawyers who pay bills, bear professional liabilities and stand answerable to Bar Counsel, should not hesitate to acknowledge at all times and all places that pro bono work often (though not always) “stinks.” If “stinks” is too coarse a word, then “possesses unpleasant and distasteful attributes.” Any moral scold with a safe job funded by the government who looks down on us working lawyers for identifying honestly the unpleasant aspects of dealing with his agency’s clients should meet with a caustic response cc-ed to his mother. If anything, pro bono agencies might do well to sell/give to donors cute ceramic skunks or dumpsters as fundraiser “gimmes” the way that PBS will give you a DVD of Riverdance or whatever it is if you donate $500.

2) When we attorneys take pro bono work, we should not hesitate to ask what we are going to get out of it for ourselves. Obviously, some chance of real aggravations and zero prospect of a full fee are part of what we can expect to get. But pro bono work can help an attorney develop new skills, new knowledge and new appreciation for how fortunate we are. It’s easy to remember the “stinks” aspect of pro bono work but a lot of people really do need help against real injustices. Sometimes, “what’s in it for us” is a chance to know that at the end of our lives, which all of us are approaching at the rate of one year per year, we did indeed do something useful and decent and meaningful. That doesn’t stink at all.

3) We should bill our pro bono clients our regular rate and then mark off the pro bono adjustment (to zero, if applicable) on regular bills, unless this practice should violate local law or rule. Getting the bill will increase the respect of the client for the lawyer, which will make the entire experience more valuable to both – even if the bottom line of the bill is a zero.

4) We should encourage and, at the Bar level, insist on as much uniformity in pro bono agency administration and service delivery as possible. When you want to secure an interest in personal property, you file a UCC-1. When you want to make a pro bono referral in a given state, the case should have that state’s PB-1 form including all of the information needed or useful (and no more) to make that referral. This PB-1 form (or a redacted or partial form, as applicable) should form the basis of a filing fee waiver petition uniformly in all state courts and should be easily harmonized with federal in forma pauperis forms. While in Maryland the Public Defender has largely given up on making sure that its prospective clients are indigent rather than employed, comfortable and merely reluctant to pay, the Public Defender should be included as the largest pro bono law firm in the jurisdiction and should at least arguably use the same form.

5) The medieval Jewish sage Maimonides once noted that the highest form of charity was not to give in a grumpy way (my paraphrase for my admittedly and unattractively grumpy tone) but to give freely in a way that would reduce or eliminate the future prospect of needing charity, such as to assist someone in the formation of a business, a capital loan, teaching a useful trade, etc. In that vein, we should view actions designed to prevent the need for pro bono litigation or other work as being on the same level, if not higher, than the pro bono work itself. This is not easy in one major sense: it’s far easier to count the number of pro bono cases assigned than to count the number prevented (or mitigated to de minimis issues) in a jurisdiction in, say, a year. While the Bar and the courts do promote public education about the law, we don’t do enough to recognize good efforts to prevent some legal harms (in part because if we have a hard time measuring it, it’s going to be hard per Peter Drucker to manage it.)

In some cases, a cash donation to a specific prospective client would do more good than X hours given to some agency or that cash given to that agency. Sometimes, clients have bigger problems than their cases and solving the problem efficiently will solve the case.

6) We should insist – politely, but firmly – that pro bono “leaders” and “spokespeople” have real experience in the private bar. It should be among the questions we ask before we agree to accept client #1 from an agency, and we should ask ourselves when we read of a new appointment at some pro bono agency, “Interesting – has __________ spent her whole career working outside of the private bar, or does she have some experience with what we do?” This is not a rude question; we expect leaders of the postal service to have postal experience.

7) Finally, we should charge something, anything, unless to do so would violate ethics or render the client truly unable to secure counsel. While it may be a pain in the neck to bill the client at $8.00/hour, it will increase the dignity and respect of the client for you to get a bill, marked down $232/hour from the usual $240/hour. It keeps the client from being able to abuse you over nonsense, or to treat you as his or her mental health professional (you don’t deserve the hassle and the client doesn’t deserve an untrained mental health volunteer.) If you decide to tear up the bill or refund the miniscule fee at the end of the case, that’s on you; the goal is to keep the “swap” dynamic so that malignant, surplus neediness doesn’t get in the way of getting the job done well.

Also, for clients who find it a source of mortification to need free legal services, the bill may increase the self-respect of the client – a worthy goal and topic in itself.

Most of the foregoing ideas are not new. I think the only one that is original to me, and it may not be, is the PB-1 form.

Nov

2012

318 employed DC gov’t workers accused of defrauding unemployment office

This is the sort of story, noted in its earlier stages in this blog earlier this year, that makes a pro-worker, pro-labor, pro-union attorney want to hang it up and go earn the hourly rates that management pays its big-firm employment litigation counsel.

Washington Examiner, November 19, 2012:

Lisa Mallory, the director of the D.C. Department of Employment Services, told the D.C. Council that her agency had detected $1.9 million in overpayments to District workers who collected unemployment benefits while on the city’s payroll.

…

Pedro Ribeiro, a spokesman for Mayor Vincent Gray, said he did not know when the city’s probe would conclude, but he said Gray remained committed to the investigation.

“We intend to move it until every case is closed,” Ribeiro said. “They’re going to settle, we’re going to sue them, or they’re going to go to jail.”

The purpose of the original unemployment insurance programs was, and remains, the delivery of limited assistance to workers who, through no fault of their own, lose their jobs. Not only did workers get benefits while on the clock, but the very dishonesty itself justifies their firing from public employment. Dishonesty against one’s employer – the District of Columbia government! – justifies a firing after which no benefits will be paid, but the act of defrauding the unemployment insurance office itself will surely disqualify them from benefits beyond a mere no misconduct filing.

I do not handle UI appeals in the District of Columbia and do not know the precise current administrative penalty for defrauding UI. What is clear is that these workers are going to lose their jobs in many cases and will not only be unable to collect unemployment but will owe back benefits. Some of them may actually get prosecuted for UI fraud criminally; while criminal prosecution is not particularly common in Maryland where I practice primarily, it is a crime here too and such prosecutions do occur. In Maryland, the administrative penalty for fraud on the UI Division is one year’s absolute ineligibility for benefits from the date of the fraud (generally, an under-reporting of weekly wages); the criminal penalty when applicable includes jail.

Not everyone who is accused of fraud has committed fraud. Sometimes good-faith errors occur in the reporting of wages, especially when employers mishandle hours calculations, withholdings, tips, sales commissions or the like. Sometimes workers neglect to read carefully and report their net wages after tax withholdings, rather than the gross wages as required. In Maryland, the UI fraud investigators do not automatically make a finding a fraud after every case; sometimes a mere error correction is issued, but repeated errors that make no sense outside of fraudulent intent will result in a preliminary finding of fraud that a claimant may appeal to the Lower Appeals Division for review.

May

2012

“Branding” in the practice of law really burns my wide-load rear end

What are brands? “Brand” comes from a Germanic route meaning “to burn”; the related words “brandy”, “brent” and many modern German words employ this root to describe the act or recipient of burning. In North America and later some other places, cattle were branded (burned, though not too painfully I am told) with glowing-hot iron markers to identify them in the event of the mixing of herds or cattle rustling. Brands were a mark of title and, to a much lesser extent, of quality, since cattle were and are essentially a commodity. While marks on goods predated branding, we use the term “brand” perhaps more often than “mark” in American English to identify goods and to a lesser extent services.

Branding or marking serves a useful purpose in commerce: to identify a series or multiple series of goods by a manufacturer with that manufacturer, to identify services with a given provider, and from the manufacturer’s or provider’s viewpoint to convey common positive qualities among those goods or services. For goods, the mark may continue to advertise the company’s identity not only at the point of sale but during its use, such as the Heinz ketchup bottle on the picnic table at the family reunion barbecue or the can of Natty Boh visible from halfway across the bar in Baltimore. While branding services may be more challenging, we know some service brands very well: the brown shield of UPS all over the company’s uniforms, packaging and fleet vehicles.

For some goods and services, their need or use may embarrass the consumer if known to others. It is merciful and proper that most prescription medicines are usually sold in uniform, brand-less containers. Although Preparation H has (presumed) value to its buyer, has a mark and distinctive packaging, one rarely finds contests with the mark prominently displayed where winners can get a lifetime supply and their names and pictures proudly displayed on the cover of Preparation H magazine. Alcoholics Anonymous has some service marks and trade marks for its publications and activities, but its anonymity and policies make anything but the most perfunctory, utilitarian and limited references to its very existence inappropriate to its stated purposes.

Ultimately, is the practice of law something more like Alcoholics Anonymous, or more like the companies who plaster their trade and service marks all over a racing car at the Indianapolis 500? Is one’s identity as a solo attorney something ideally staid and reliable, such as that of a classical perception of an traditional rabbi or priest, or is it more like an XBOX 360 or Budweiser or, perhaps less aggressively, like UPS or FedEx?

The first purpose of branding – to establish the sourcing of goods or services – is barely needed if at all in the practice of law. Most documents written by lawyers have the lawyers’ letterhead or lawyers’ signatures included or attached either by law (pleadings, deeds in some states including Maryland) or by practice. Usually the envelope in which the work product is delivered has a watermark, label or return address from the lawyer or law firm on it. Most importantly, clients know who their lawyer is, whom they hired to do what negotiation, drafting or litigation work on a given case. It’s not like a can of soup without a label, in which instance finding out what’s in the can is not possible without opening the can and finding out who made the soup is probably impossible even after opening. Since legal services are usually confidential, the universe of people who need or want or have the right to know whom some person retained for a given legal matter is either tiny or non-existent and when there is such a right, there’s a lawyer’s signature, letterhead or card nearby on the handiwork.

The second reason to brand goods is not merely to identify but to induce and maintain loyalty or to dislodge the loyalty of a competitor. If Domino’s Pizza and Papa John’s go to war in a given market, each will use their brand, their marks, to identify themselves not only regarding a given boxed extra-large veggie pizza but to assert and win brand superiority and to maintain customer loyalty. Brands are descriptive but also proscriptive tools; they mark, enhance and move forward against resistence the battle lines between competing market players. For pizza and soup cans and detergent, this is fine and good.

As attorneys we are under many regulatory constraints that keep us from acting like Coke and Pepsi. We mostly cannot discuss our clients’ business in public or otherwise with outsiders (although some damn fools try, such as every lawyer whom George Zimmerman has hired to date.) We cannot compare our services to those of other attorneys unless those claims can be factually substantiated; since we cannot usually discuss our clients’ business outside the firm, it’s hard to make an ethically permitted comparison. We cannot solicit or otherwise speak to a represented party and we cannot solicit in person; this makes grocery store-style “Pepsi challenges” to loyal “Coke” clients impossible as clearly prohibited under ethics rules. We cannot call ourselves “specialists” or, in many jurisdictions including Maryland “experts” without a serious risk of a violation or a guarantee of one. Brand identity isn’t very useful in this context; I would argue that it’s absolutely useless.

Some attorneys have commented online about the need for an “identity.” I don’t know precisely what they mean. It could be that they literally don’t know who they are; this is known as amnesia. It could be that they don’t know what their identity means or should mean professionally; this is a crisis of meaning or existential crisis. It could be that they don’t know what their perceived identity is or should be; this is a descriptive or proscriptive marketing issue.

It’s clearly not amnesia as this is real life, not a soap opera whose writers hit a dead end. It may well be an existential crisis, such that these often young attorneys are humming along unironically to Eminem’s lyrics “And I am, whatever you say I am” but missing the point of that piece of hip-hop. The practice of law is no place to resolve an existential crisis; that belongs to more personal realms of philosophy or religion or whatever. But like young people who glom on to religious movements as an imperfect puzzle piece curved and jammed into the identity “hole”, some of these low-identity attorneys may be looking to fake it until they make it – until they cannot see or feel the hole any more.

Other attorneys might indulge the maluse of “identity” and “branding” perhaps not so much to sell themselves but as a sales tool to the clients. In this pursuit ethical violations petty and hard-core may ensue, though the likelier result is mere time-wasting. Clients aren’t looking for the brand; they are looking to pursue or achieve dreams, slay or reduce nightmares, protect their property or cash flow or freedom or good name or privacy, continue their legacy, find peace, inflict horrible misery on their enemies, etc.

The “brand” or “identity” is even more of a BS layer for lawyers than it is for pizza – ironic, as we owe a stronger duty of care and candor to clients than Pizza Boli’s does to me when I indulge, to my detriment, the occasional purchase of a pizza with pineapple and hot peppers. At least the Pizza Boli’s sign and box help customers find pizza; then again, almost all non-vegan Americans eat pizza occasionally and it’s a fun, impulse purchase with no lasting bad effects (if it’s occasional or if you are Michael Phelps training for a meet.) Plus, Pizza Boli’s is a chain; consistency in the product from store to store is confirmed by common ingredients, recipes, equipment, etc. There’s only one you or I as solo attorneys; we don’t need to confirm any multiple-office common standards like a pizza chain.

Your identity as an attorney was issued to you by your mother or other relatives at or near birth or otherwise per lawful name change or name registration upon entering the Bar. My identity is T[heodore] Bruce Godfrey, attorney; if I forget that, call the doctor (and if I keep forgetting it, call Bar Counsel.) In most jurisdictions, law firms may not practice under a law firm name other than that composed of one or more attorney names without special clearance. You have no need for an identity; you have it.

What you need is a reputation, but the only ways to earn that are through consistent competence or, ideally, excellence in one or more practice areas and through solid performance on aspects of law practice other than mere competence, such as efficient return of phone calls, diligence, respect for the value of clients’ money (this is NOT to suggest low-balling your fees, but to bill intelligently and consistently with the Golden Rule.) You know – actually doing your job well, as you would expect of a mechanic or a plumber or an electrician. This isn’t to say that you shouldn’t aim to get really good at a practice area quickly; indeed that’s commendable, it’s where you should be aiming your efforts Without solid mentors and peer-apprentices of similar mindset and habits, however, you are unlikely to have a solid basis to judge your skills or to know when you are out of oxygen.

In due course, through persistent skill development, you can become competent and indeed excellent in a given area of practice. Not “competent”, but competent: you know it well enough to do it well and efficiently. Above competence is the ability to teach others, or to correct others’ errata or to engage in well-grounded debate in the gray areas of your practice area. (Part of competence is knowing when something is not knowable but mostly or entirely a matter of judgment calls or opinion.)

I am not Jewish or otherwise religious but I am informed that in the tradition of Torah study in traditional Judaism, it is customary not only to have mentors but also consistent Torah study partners to bring out the best from the student. In law school we do not do so in the same way, though in fairness the purpose of law school is quite different from the purposes of religious study. In the practice of law, though, we probably need “study partners” – good ones – more than in law school itself. The economic demands of practice and ethical restraints on confidentiality make getting a “study partner” in a law practice tricky, but doable. At a minimum, list-servs from Bar associations can help.

“Branding” simply isn’t part of the business of developing your craft and repute as a solo attorney. Florida criminal defense and ethics attorney Brian Tannebaum got it dead right over at Above the Law. Believe no social media hype or existential pangs suggesting the contrary. Far better to spend the day in study over the unsexy, uncool Rules of Procedure.

Apr

2012

Open Letter to National Organization for Marriage Requesting Boycott of Law Office of Bruce Godfrey

Original Letter

3 April 2012

National Organization for Marriage
Open Letter
By facsimile: (888) 894-3604

Re: Request to Join Boycott List

Dear Madam or Sir:

I write your organization to request that the Law Office of Bruce Godfrey be placed on the boycott list for corporate and business advocates for the recognition of lawful civil same-sex marriage. I would be most grateful for recognition of my small law office as an opponent of your cause in Maryland as you have recognized companies such as Starbucks. While Maryland attorney ethics rules place strict prohibitions on attorney solicitations of prospective clients for hire, no ethics rules prohibit an attorney from asking to join a boycott – as a target.

Bruce Godfrey has been a loud and notorious advocate of lawful civil same-sex marriage recognition in his home state of Maryland for many years. His unapologetic advocacy of equal protection principles and of the equal rights amendment of the Maryland Declaration of Rights advocacy has cost him friendships and business relationships. Godfrey is an inveterate opponent of your cause and a strong supporter of your most implacable legislative foes in the Maryland State House and General Assembly. He earned your boycott through loud commentary on this issue as a straight ally of equal protection of the laws on Facebook alone, and will continue to advocate for equal protection of the laws in Maryland per his Maryland Attorney Oath.

It was said of the late actor Paul Newman that his proudest life achievement was being placed on the infamous “enemies short list” of President Nixon during the Watergate era. If NOM requires a certain amount of achievement in opposition to your aims to merit a boycott, please receive this as a request for the clarification of your boycott criteria so that the Law Office of Bruce Godfrey may, through diligence and honest effort, merit that honor. Please target Bruce Godfrey for boycott; he intends to earn it.

Very truly yours,

Bruce Godfrey, Attorney (MD/DC)
Attorney at Law

commentary

Towards making pro bono work “stink” less

318 employed DC gov’t workers accused of defrauding unemployment office

“Branding” in the practice of law really burns my wide-load rear end

Open Letter to National Organization for Marriage Requesting Boycott of Law Office of Bruce Godfrey

Get Godfrey On the Phone!

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