The Ten Rules of Lawyering

Rule 1: Get Paid Up Front
Rule 2: Don’t Win The Ethics War, Avoid the Ethics War (Foonberg the Great)
Rule 3: 90% of Law School is a Waste, but Which 90%?
Rule 4: Never Believe Career Services, Especially When They Tell The Truth
Rule 5: Law School Is a Terrible Investment; Make the Most of It
Rule 6: It’s Impossible to Kiss Up to a Court Clerk Too Much
Rule 7: “Garbage Law” Doesn’t Exist; It’s All Garbage and It’s All Gold
Rule 8: Swim With a Buddy
Rule 9: Flakes Gonna Flake (aka Screw-Ups Screw Up)
Rule 10: Integrity Is “Good Selfish”

Adam Reposa, Attorney at Law….

This report shows how attorney Adam Reposa of Austin has gotten jailed for contempt of court for using a lewd gesture at a prosecutor during a trial, made crazy ads and now created stickers bearing the seal of the City of Austin marking businesses as for “white people only” and affixed them to businesses in gentrifying neighborhoods in Austin, Texas.

Previously I suggested that attorney marketing by means of vulgarities was not so wise. Mr. Reposa’s “www.dwibadass.com” impresses me neither, both because it promises something not objectively verifiable and it’s also just tacky, crude and lawyer-centered, not client-centered. Of greater concern is Mr. Reposa’s “Why Hire Me” page, in which Mr. Reposa states:

“Then once you are convinced that I will give you as good of a chance, if not a better chance, of beating your case as any lawyer alive, my staff will work with you to make a workable fee schedule.”

This is the sort of unverifiable claim that attorney ethics rules discourage – ESPECIALLY when made with the specific intent to persuade a perspective client to hire (as the title of that page suggests.”

The State Bar of Texas reports that Mr. Reposa underwent a “fully-probated suspension” for three years. Because the Maryland Bar does not use a disciplinary status, I do not know precisely what that means. Mr. Reposa was admitted to the Bar. Mr. Reposa was admitted to the Bar in September 2003 and graduated from the respected University of Texas School of Law in June 2001.

To avoid: calling your client, in written correspondence to her, an obscene name

Sometimes I can be downright grouchy, truth be told; I have many faults and, sometimes, that’s one of them.

But I haven’t yet lost my cool so badly as to write a letter to a client calling her an obscenity in print, wishing her malice and insulting her progeny.

From page one of AGC v. Basinger:

After learning that Keys had denied that she had retained him, Basinger mailed to Keys letters in which he called Keys “A TRUE C[**]T” who had “finally f[***]ed up one time too many”; called Keys “a reprehensible human being” with “worthless progeny” and a “pathetic and dysfunctional world”; accused Keys of being lazy and dishonest, engaging in “defamation” and “absolute evil behavior[,]” and “trying to weasel [her] way out of paying the full amount of [a funeral chapel]’s bill”; suggested that Keys perhaps was responsible for her grandson’s death; stated that, if he ever saw her again, “it [would] be too soon”; and wished Keys “only the worst from here on out.”

If you are that unhappy with a client, you should simply terminate the relationship (in a manner consistent with, and to the extent permitted by, applicable Rules.) Some clients deserve to be fired and a few rare ones deserve to be chastised; none deserve to be hit with obscenities.

Poor Advocacy Choices: “I am the [*******] lawyer”

Scene: Essex (“of course”, said every Baltimore area practitioner to her/himself), afternoon docket. I am there with my client, about whom I will make no comment.

The Court heard a “not guilty agreed statement of facts” (tantamount in general to a guilty plea) for a woman (not my client) who was accused of drunk driving and hit-and-run violations, in colloquial terms. The narrative was that she tied one on at a eastern Baltimore County bar (“of course”), tapped/scraped one or more cars on the way out and went home without doing a proper job of inspecting/notifying the owners.  Officer “responded to the scene” (“of course”), investigated the scene replete with witness statements and paint scraped, determined a suspect’s identity and home address and drove to that suspect’s home.  On the officer’s arrival, the suspect regaled the officer with a lot of helpful information, such as “I don’t have to f****** talk to you” (true) and “I am going to get off on this, I work for a f****** lawyer” (proven false in this case.) The officer ultimately arrested the defendant.  The Court found the defendant guilty of the lesser of Maryland’s alcohol charge, essentially by plea, and the attorney proceeded to mitigation.

The first words out of the attorney’s mouth were, in substance, “Your Honor, the defendant works for me; I am the f****** lawyer”, without euphemism. The Court was visibly taken aback and ultimately deferred sentence to near the end of the docket, citing her discomfort with the nature of the language used in court.

Why is this bad? Well, here’s why….

1) If you are the “f****** lawyer” to whom the defendant makes reference in her drunken tirade, and your employee/prospective client asserts you as the reason why she will not face consequences, don’t take the case.  Refer it out.  At a minimum, it has the spirit of a conflict if not a black-letter rule conflict, in that your own interest in keeping your good name as a working may conflict remotely with the client’s liberty interest. Refer it out.

2) If you do take the case, against advice, do not refer to yourself as the “f****** lawyer.” Why? Because it tells the Court that you find what happened funny when you shouldn’t. Because it’s a terrible thing to say in open court. Because you want the Court to FORGET that your client said that, and being that lawyer and reminding the Court of her words is directly counter-productive. Because your own dignity as an attorney mandates that you define yourself in professional terms, not the terms of your drunk client. Because your lack of dignity tells the Court that you don’t care enough about your client’s case to do even a minimally sensible job, and therefore perhaps your client deserves some severity. Because it proves that you are stupid when your stupidity doesn’t advance the interest of your client.

Don’t know what the Court ultimately did to the client or the attorney – had to step out with my client – but it was embarrassing.

Friolo v. Frankel: 14 years of Maryland litigation and still going strong

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.

Top 10 things I wish that Clio (goclio.com) would add to its program

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.

  1. Quick access to all of a specific client’s bills within a matter record.
  2. A tickler function allowing one to cycle through all open matters gracefully; we should “check in” periodically on all files of course and a cycle/tickler function would facilitate, say, a monthly check in. Some firms might welcome for their associates a “hard lock” function requiring the attorney to put a status update comment in every open matter every month before it will let the attorney do anything else, unless waived by someone with admin-level privileges.
  3. Escrow account and operating account checkbook-style reconciliation tools, with reconciliation reports that track what we need to track to report the “iron” triple reconciliation requirement: Sum of client balances = House Balance = Bank Balance, with allowed adjustments for bank fee money and uncleared transfers.  If Clio does this, I think they can reasonably charge an additional $10/month or more.
  4. A tool for joining matters for joint representation, or allowing data to be entered into multiple records at once, for instances where joint representation is the case (and, to my mentees, ethically approved with informed consent confirmed in writing.)
  5. Some add-on/plug-in allowing for back emails from, say, Gmail for search and forwarding into a matter’s record (e.g. all emails regarding Quartermaine to be forwarded into 00325-Quartermaine.)
  6. Tracking of non-client matters (example: Bar Association projects, key vendors, etc.) under a separate client numbering system.
  7. Changing the names of some labels.  For example, one can enter “Activities” and also enter “Time”; both allow the entry of billable events, but you might get the idea that they are different things.  Similarly the use of the misleading term “fees” for all debits from escrow are of concern; some debits from escrow better NOT be for fees. In short, a revamp of the labels for some items for User Interface optimization.
  8. The ability to enter in full contact info for a new matter immediately.  Perhaps a minor point, but it’s a little inefficient to have to enter in a new client’s name when creating a new matter only to have to enter in the address and phone number in a second iteration.
  9. A field in the new matters interface for the identity of the referral source, ideally with a tickler item for a thank you note and/or ethically approved work-share/fee-share terms under Rule 1.5.
  10. An option for an auto-reminder from closed files say, one year after closure, for follow-up letters, greetings, renewal of corporate annual minutes.  While other ways exist to handle this, this might be a helpful tool as an optional global setting.

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.

“Don’t kiss your clients, but market like you want to.” – WHAT?

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.

Mentoring Program of the Maryland Professionalism Center

photoI am pleased to report a successful year in the Mentoring Program through the Maryland Professionalism Center, Inc., a non-profit organization that works in close coordination with the Maryland Court of Appeals, particularly with the Hon. Lynne Battaglia of Maryland’s highest court. My mentee this year was a young aspiring family law attorney whose prior mentor through the program failed to follow through. Despite a major medical upheaval on my end mid-year and logistical issues, my mentee and I successfully completed the entirety of the program in a timely manner.

The mentoring program requires six meetings between mentor and mentee on topics ranging from, among others, unwritten “customs” about postponement requests, major malpractice and ethics pitfalls, conflicts of interest, time management, legal writing style, ethical and effective client development strategies and, perhaps most importantly, how to select suitable cases (my translation: how to reject flaky, meritless and inefficient cases.)

I encourage any experienced Maryland attorney who has the time and inclination to join the Mentoring Program; it is a great way to discharge part of the hortatory pro bono publico duty.

UPDATE 4 Feb 2014: I thank Ms. Monise Brown, Executive Director of the Maryland Professionalism Center, Inc., for alerting me to potentially misleading language in the title of this post, since corrected.  While the Maryland Professional Center, Inc., serves the interests of the Bar of Maryland in the sense of the collectivity of Maryland attorneys licensed under the supervision of the Court of Appeals, it and its Mentoring Program are not part of the Maryland State Bar Association, Inc. (MSBA), Maryland’s voluntary bar association to which about 1/2 of Maryland attorneys belong (myself included.)  The MSBA may have meritorious mentoring programs of its own.

Jan-Feb Issue of MD Bar Journal is worth reading

The Maryland State Bar Association’s Bar Journal is always a worthy read but there are particular articles worth reading for many solo attorneys in the most recent issue.  Preeminent attorney discipline attorney Alvin Frederick, Esquire, of Eccleston & Wolf and Associate Bar Counsel James Gaither, Esquire, provided an article on online professional ethics and cybersecurity, respectively.  Each article merits your time if you practice in this state.

I was interested to read that the Office of Bar Counsel of Maryland is now, as of the last 60 days or so, running a paperless office.  My own office is making that transition and it would be worth reading how the Office of Bar Counsel undertook the process; that fact was not the central point of Mr. Gaither’s piece, but of interest to me.

Mr. Frederick’s piece (which I believe he co-authored, will give full credit when I return to the office tomorrow) discussed among other topics the issue of online puffery in attorney ads.  While puffery in attorney ads is not a new ethical concern, the Internet seems to have instigated (or at least accompanied) a race to the bottom.  The Bar Journal article noted that an attorney who claimed in such an ad to be the “most aggressive” would be engaging in misconduct unless the attorney could substantiate the claim objectively – a likely impossible task.  In my experience, the more common forms of online puffery are claims to be the “best” attorney in some field under either no objective criteria or under paper-thin rent-an-award standards from some attorney marketing company without peer review, comment or objective measurements.

I used to put my Avvo rating on this site; I won’t name my current rating but it presents me very well.  On the other hand, I have a substantially higher Avvo rating than some of the undisputed leaders of this state’s Bar.  There’s no way that I am a superior attorney to the some of the attorneys who were already Bar leaders on the day that I sat for the Bar exam in 1994, but Avvo will tell you that I am superior to them.  With some regrets, as there are things about Avvo that I did and do like, I no longer list that score here because to do so would be at least theoretically misleading to some clients.  Avvo unfortunately has the problem of profiting from this sort of serious misinformation.  Long-time attorney rating service Martindale-Hubbell (now owned by Lexis) has similar, though perhaps smaller, problems.

Just test this out: google “Best attorney [town]” and watch what comes up.  You can also google “attorney specialist [field of law] Maryland” and see the same sort of thing.  This blog has an attorney “specialist” [sic] finder for Maryland attorneys through Google some months ago, but I took it down because it seemed like overkill.  Many attorneys claim to be the “best” or the “top” attorney, in suspect if not outright definite violation of the rules against lying to clients about attorney skill sets and quality.

Every attorney should be and accordingly feel proud to claim to be competent.  Competence is Rule 1.1 of the ethics rules in Maryland and in most states; it’s at the top of the rule book.  Know what you are doing, or at a minimum associate with attorneys as needed to fill in the knowledge gaps.  But any claim above competence needs to be verifiable objectively if it’s designed for, or has the effect of, inducing a client to retain or keep the attorney.  If something is objectively true and verifiable as such, it’s probably fine to state that it’s true, but the number of attorneys (particularly new to practice) who claim to be “the top” or “the best” attorneys is almost staggering.  Many of the those attorneys may actually fall short of technical competence, let along being better than the attorneys who have been doing CLE for junior attorneys for 20 years or who wrote the Maryland hornbooks or standard manuals for their practice areas.

When I judge another attorney’s skill or leadership, here’s what I look for:

  • Peer-reviewed scholarship or publication, either in
  • Providing CLE in that’s attorneys field (if you have been teaching the material for a while, you are going to be getting it right in all likelihood).  Maryland doesn’t have much of a problem of garbage time-filler CLE because CLE is not mandatory (yet.)
  • Mentoring roles in helping other attorneys
  • Leadership in speciality bar associations
  • Pro bono work
  • Consistent high ratings over time from peer-reviewed ratings services
  • Appellate work in the practice field
  • Peer Review Committee work with the AGC
  • Representing other attorneys in any litigation, disciplinary or otherwise
  • The opinions of attorneys who fulfill 3-4 or more of the above
  • A website that deals in substance and actual practice issues, and not mere puffery
  • Humility regarding skills or experience – this actually makes me up-rate the attorney in my mind, for ethical caution and long-term thinking

An online ad claiming that the attorney is “top” or “best” is likely to make me down-rate the attorney, under the theory that the lawyer is both minimally accomplished and reckless regarding ethical compliance.  An online ad stating that the Maryland attorney “specializes” (or using any other part of speech) tells me that the attorney either is reckless regarding ethical compliance or is at least negligent regarding the supervision of the social media hacks that the attorney hired to “get eyeballs” or “make good SEO.”