first_img EnronI have to laugh at Bar President Terry Russell’s spin on the lesson of Enron: “This is a pretty good example of why [MDPs] can’t work. If they were to inject that philosophy into the law, that’s what could happen. That’s why we found MDPs incompatible with our core values.”In fact, it was the adoption by the accounting firm of the “core values” of the legal profession that created their problem: those core values that teach us, “my client first, my client always”— and, ultimately, “my client right or wrong.” It was their failure to follow the core values of the accounting world — a duty to the public that outweighs the duty to the client — that got them into hot water.Incidentally, there was a major law firm involved in the Enron situation which was engaged by the board (well before the bankruptcy) to investigate rumblings of concern over the partnership transactions; they didn’t exactly cover themselves with glory by adhering to the lawyers’ “core values” and producing a report that exonerated their client from any responsibility for anything. Barry Augenbraun St. Petersburg Hourly BillingThe September 11th tragedy and the Enron collapse encourage us to prioritize our values and improve relations that are important to us.This includes our clients. I believe public respect for the Bar will follow our return to professional ideals.The gradual change from fixed fees to hourly billing has contributed more than any other factor to the decline in professional ideals and the erosion of public respect. The Supreme Court, in Florida Patient’s Compensation Fund v. Rowe, endorsed an almost mechanical application of hourly fees based on its experience that hourly fees would result in the losing party paying the lowest fee. The court did not foresee that the concept would be abused.Hourly billing encourages unproductive and unnecessary discovery, discourages early settlements, and places the lawyer’s need to profit in conflict with the client’s goal to resolve an issue.Hourly billing also places new lawyers in a culture that stifles creativity in favor of a billable document and the ideal that the practice is a public service.I concur with Chief Justice Rehnquist’s commencement address at Catholic University when he said: “Clients regarded lawyers as supplying a sort of service different in kind from that supplied by their vendor of office supplies or raw materials. But if the law firm simply counts the number of hours spent and sends a bill for that amount, perhaps there isn’t any great difference between the law firm, on the one hand, and the office supply vendor who simply counts the number of pencils furnished and sends a bill for that amount, on the other.”While the Bar cannot legislate integrity, it can regulate in ways that encourage lawyers to act professionally:1. Fee guidelines for the prevailing party can be established based on the type of case, amount involved, number of witnesses, and length of cross examination.2. The lawyer must advise the client of alternative dispute resolution, and to certify as a requisite to filing a complaint that either ADR was refused or was not successful.3. A settlement conference be conducted by a (probably retired) judge or mediator prior to any formal discovery or trial preparation when the damages are monetary. This conference likely will be the first time clients can evaluate the case and help them quickly settle disputes.4. Depositions of witnesses and interrogatories be eliminated unless otherwise ordered by the court when damages are monetary and less than $50,000.5. In non-contingent cases, the client must be given the choice of (1) a fixed fee, (2) a fixed fee for each activity involved in the engagement and which will be performed only with the client’s consent, and (3) an hourly rate.These changes would encourage early and cost-efficient settlement, which is a criteria that distinguishes “profession” from “business.”These suggestions are quixotic but not impossible. I suggest the Board of Governors designate Bar Executive Director John Harkness, who has qualified staff and no personal interest, to head a study to determine whether changes in Bar or procedural rules may improve professional behavior and relations with our clients. Richard Kanner Miami First AmendmentIt was interesting to read the perspective of the lawyer who recently wrote the News (March 1) to condemn a Bar seminar on adult entertainment. According to the writer, she was “appalled” by a program pandering to “lawyers with little regard for public morals,” who, in their zeal to protect “the sleaze industry,” exhibit “little regard for public morals.”Now, it is difficult to defend anything which, as the writer asserts, “destroys families, creates predators, and injures innocents, especially children.” I find it ironic, however, that the same conservatives who gladly trumpet individual rights when it serves their personal agendas ( i.e., undermining state or federal programs designed to eliminate discrimination) are quick to reverse course when something they do not like ( i.e. abortion, flag-burning, individual rights) threatens their personal values — which they mistakenly tend to universalize as “public morals.” In those contexts, these same “no big government” conservatives are only too happy to have have the entire weight of the state apparatus crush what they designate as “harmful” to the public.This faulty and simplistic thought process ignores the rights of adults to make decisions as adults, even unpopular ones, which may (or may not) include the patronage of adult entertainment. This particular member of the public (who, by the way, has not seen the inside of a strip club since a bachelor party more than 10 years ago) believes that a larger threat is posed not by adult business, but rather by the gleeful willingness of sanctimonious zealots to impose their own particular moralities on the rest of the world, despite the existence of the First Amendment. Jonathan S. Coleman TampaThe lawyer who wrote to the News March 1 was wrong to limit her outrage to First Amendment CLE courses (because they “arm the sleaze industry with weapons and legal techniques”). There are numerous areas where CLE is disserving our citizens by training lawyers to represent scum.Nowhere is this more blatant than in criminal law seminars, which, in the guise of equipping government lawyers to prosecute criminals, in fact arm the lawyers representing the scum of our society with weapons and legal techniques. When criminal defense lawyers win, the dregs of society are released into the public to commit even more heinous crimes, creating predators, and injuring innocent people, including children.The insurance industry is incredibly successful financially. When our CLE programs, in the guise of equipping plaintiffs’ lawyers to seek just compensation for the injured, in fact train insurance defense lawyers to help their client companies avoid their responsibilities. Then innocent victims are foisted onto the welfare system and upon underfunded medical care systems.An equally disgusting expenditure, in the guise of equipping tenants’ lawyers to resist evictions by greedy landlords, in fact trains landlords’ attorneys how to expedite the adding to the ranks of the homeless.And let’s not forget CLEs on medical malpractice. These programs are a gross mistake, because, in the guise of helping doctors’ lawyers ward off dubious and spurious malpractice actions, they in fact train ambulance chasers how to utterly destroy an honorable doctor’s practice, reputation, and career. No, wait — I got that backwards. In the guise of training lawyers how to expose malpractice and get just compensation for patients who have been the victims of horrid incompetence and medical malpractices, they in fact train doctors’ lawyers on how their doctor-clients can avoid responsibility for their gross negligence and horrid medical practices.There are many other abominable CLE subjects, but I simply cannot close without castigating those CLEs that are supposed to train women’s attorneys how to get assets and alimony from deadbeat husbands, when in fact they train men’s lawyers how to avoid giving destitute women a fair share of their male clients’ wealth, and justifiable support and alimony.Oh, yes, lest I forget, all those ethics courses are supposed to teach ethics to lawyers, when in fact all they do is teach lawyers what they can get away with, even though that offends my sense of morality.I, like the writer, protest the use of CLE funds for all these unjustifiable courses. Of course, I understand that CLEs are moneymakers for the Bar and don’t add to members’ dues, but I protest the use of Bar or CLE funds anyway.In fact, since all these courses train lawyers how to represent the wrong kinds of people and organizations, I say we do away with all CLE. Maybe we should even do away with their lawyers. M. Ross Shulmister Pompano BeachI am writing to briefly respond to the fellow Bar member who wrote the News regarding the “Sex, Laws and Government Adult Entertainment Law Symposium.” She stated that the First Amendment CLE was “really not designed to equip government lawyers to fight porn. . . but instead to arm the sleaze industry.. . . ”I applaud the writer’s willingness to speak her mind and appropriate choice of forum in which to express herself. Indeed, this is what the First Amendment is all about. Having said that, certainly the same criticism could be levied against any criminal law CLE (which “arms” lawyers for criminals), tax law CLE (equipping counsel for tax-evaders) or any CLE with a defense perspective (aiding lawyers for purported wrongdoers).One tenet of legal ethics is to “defend the unpopular” without necessarily endorsing the client’s moral views or activities (Rule 4.1.2(b)).As such, since it is important to “get the public to respect Florida lawyers,” both the Bar and its members need to educate the public on the role of lawyers — even when we disagree with their clients. Christopher Hopkins West Palm Beach Conflict of Interest?Do I have my facts right? I read in the February 15 News that Tallahassee attorney Barry Richard has provided an opinion to the Bar that it may not lobby the legislature on proposed sales taxes on services, including legal fees. I do not question that advice. However, the article also indicates that Richard “has been retained by the Florida Senate, which is pushing the constitutional amendment to lower the sales tax rate at the same time expanding it to many services now exempted in state law.”The article notes that neither the Senate nor the Bar had a problem with Richard giving the Bar an opinion on this issue. Were any Bar dues used to pay Richard for his opinion? If so, I protest the use of my dues to pay for legal services from someone who appears to have a clear conflict of interest. Are there no other lawyers licensed to practice in Florida who could provide advice to the Bar on this subject? David P. Frankel Washington, D.C. Crooked LawyersIn “Lawyer gets 10 years for misusing client funds,” in the March 1 News, it was reported that a fellow Bar member has gone to prison for stealing $2.4 million from clients. The lawyer’s clients can now make a claim to our Clients’ Security Fund which will return to them pennies on the dollars. There are at least two better ways to protect the public:We pay. Our leaders talk a great deal about “professionalism,” “giving back,” “putting something back,” “community service,” or whatever the politically correct rubric of the day happens to be. Yet, despite the headlines, photo opportunities, and the rhetoric, the public does not think well of us. We are not trusted, and until we as a group do something about it, perhaps we should not be trusted. Politically correct public relations will not improve our image. We have to put our money where our leaders’ mouths are.We can start by assuring all clients of Florida Bar members that if they are ever cheated by a Bar member, they will be fully indemnified. Since we number roughly 63,000, I propose we each be assessed $38 in next year’s dues statement to pay the errant lawyer’s clients back the money he stole (we can take an assignment of the clients’ causes of action against the lawyer, or perhaps the trial judge will funnel any restitution back our way, thus giving us the opportunity to get some of the money back later).Once a year we can effectively tax ourselves to protect the public from our errant brethren. If one of us steals from a client, we pay the client back 100 percent. When added across all potential claims, the amount we each may have to pay under such a system may be at times significant, but I suggest the money will go a long way toward gaining the public’s trust in us as a learned guild.Use IOTA money. In addition to or perhaps instead of an assessment system, we could use all of the IOTA money to compensate lawyers’ victims, and then allocate remaining funds to other uses. This is not the place to discuss the merits, propriety, or legality of the IOTA system; we have the system in place, so let’s put it to good use.We are not talking peanuts. “IOTA contributions received (cash basis) for the period [the four months ended October 31, 2001] are $4,166,589 up from the same four-month period in the previous year by $211,199 (5.3 percent). IOTA contributions are projected for the fiscal year (July 1 – June 30) to be $11.6 million.” This was money generated from clients. I suggest that the money should likewise go to clients—to the aggrieved.I don’t know how much Florida lawyers are stealing from their clients, but $11 million per year ought to go a long way toward compensating the victims. If the IOTA money is not enough, we should pick up the remainder of the tab. Leo Bueno Miami Public PerceptionThe fallacy of composition can be comforting: I like most of the Florida lawyers I know; I dislike The Florida Bar.It asked of me questions, in the Bar application, it was not entitled to ask, let alone have answered; and where does all that money go? Multiply, if you are sitting down, the number of members by the annual fee.That said, I ask my union, The Florida Bar, to stop fretting over the extent to which non-lawyers hate lawyers. That is a battle we cannot win, and we are talking about attitudes we have neither the power nor the right to change.It occurred to me, cross my heart, during law school that what lawyers do is they whitewash America’s fence.If the analogy is valid, at least two implications are worth considering. First, much of the work we do, along with being hard, is unpleasant; and we were not all of us told that when we enrolled in law school. Second — you remember, Tom Sawyer made the whitewashing seem fun, made it a privilege — among people who don’t get to whitewash we are objects of envy.Some people may be put off by the source of the following quotation; if so, they may want to lay prejudice aside and evaluate the reasoning: “The 10th commandment requires that envy be banished from the human heart.. . . Envy is a capital sin. It refers to the sadness at the sight of another’s goods and the immoderate desire to acquire them for oneself, even unjustly (Catechism of the Catholic Church, pages 668-669).”Quoting a saint, the explication of the 10 Commandments continues: “From envy are born hatred, detraction, calumny, joy caused by the misfortune of a neighbor, and displeasure caused by his prosperity (Catechism, page 669).”If I envy Joe his Saturn, what I want is either (a) the Saturn or (b) that he should be deprived of the Saturn. Maybe I want to hurt him for having had the nerve to get a Saturn in the first place. Maybe I want to teach him a lesson, make sure he doesn’t get another one.What I want is to not feel bad. If Dale Carnegie is right, that will happen only if I find a way to again feel superior. It’s hard to feel superior to a lawyer, in part because most non-lawyers are inferior in at least one important way: They don’t think as well as we do.Envy can operate below the level of the conscious and orderly mind, as you know.One reason I went to law school, Georgetown, was to root out intellectual insecurity. I did not know I would become an object of envy by the intellectually insecure.Envy is not the only reason we lawyers are hated by the very people we have indentured ourselves to serve. I am a dolphin; I am perceived as a shark. I hate that, but I can’t change that, and even though I have no right to mess with someone else’s perception I surely would change that if I could.I can change this, if only by mentioning this to the fraternity.I don’t like being hated.It isn’t my fault non-lawyers are not lawyers or that some of them fear people who know useful things they don’t. I resent, frankly, my law school’s failure to prepare me for the irreducible hatred (envy, I think implies hatred) of the group I was joining. I cannot get used to membership in a hated minority, lawyers. I will not much longer prevent myself from hating back. Alan J. Murley Sarasota (Editor’s Note: The Florida Board of Bar Examiners is charged with administering the process through which persons seeking to become admitted to the Bar prove their eligibility and is a separate entity from The Florida Bar.) Sex With ClientsI am writing regarding the article “Attorney suspended for having sex with a client.” I am disturbed by Justice Barbara Pariente’s concurring opinion in which she advocates a complete ban on all sexual relationships between lawyers and clients during the representation even if the sexual relationship began before the representation.This would make the rule absurdly strict. For example, a wife could not represent her husband in any legal matter without being disciplined by the Bar (unless she were to abstain from sex during the period of representation).The current Rule 4.8.4(i) is sufficient to prevent abuse while allowing attorneys (male and female) to be human; we do not need to turn the Bar into a branch of the Committee for the Propagation of Virtue and the Prevention of Vice. Jason Warshofsky Coral Gables April 1, 2002 Regular News April 1, 2002 Letterslast_img

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