The Legal Web

PG notes that many websites operated by lawyers and law firms, while often the source of interesting items for TPV, have been largely abandoned during the age of Covid.

In some cases, well-known legal bloggers, even at the partner level, have been terminated.

It is not unusual for attorneys (including PG) to maintain and attract clients by demonstrating knowledge and expertise in their areas of practice by posting news and commentary on happenings in the legal and commercial world of their clients and potential clients.

If a client goes to the attorney or law firm she/he uses for a variety of purposes and asks for help for something the firm isn’t able to provide because it’s outside the firm’s range of legal expertise, the best way that firm can assist the client is to refer them to someone of the legal persuasion who has the needed expertise. (It is also likely to be a violation of legal ethics for an attorney to provide legal advice to a client if the attorney knows nothing about the subject.)

If the attorney is not personally acquainted with a lawyer with the required expertise and if some brief online research disclosed an attorney with a website or blog devoted to the legal topic the client required, the attorney might point the client to the website or blog for additional information. If PG were doing something like this, he would make clear to the client that he wasn’t personally acquainted with the lawyer and how he had found the lawyer’s name and website. If the attorney’s website revealed that he had written or spoken on his/her area of expertise in connection with state or local bar association publications or activities, that would be another plus.

Back to the firing of well-known legal bloggers, time spent blogging is time not spent billing clients by the hour. Typically in larger firms, either the managing partner, a non-lawyer professional manager and/or a group of senior partners receives regular reports (it used to be monthly, but PG is informed that at least some firms have transitioned to weekly) about how many billable hours each attorney (and sometimes paralegals) have racked up during the reporting period.

If the legal blogger isn’t keeping up with billable hours, even if the blogger has brought in some significant business in the past, evidently the blogger’s promotional and publicity value isn’t enough to avoid the axe.

Typically, when clients are experiencing financial problems, they may ask their law firms to adjust bills (always in the same direction) and may complain about being overbilled on certain matters. Some law firms may proactively reduce their fees for some clients on a temporary basis, informing the clients they are doing so.

Firms with a group of attorneys focused on significant bankruptcy matters tend to be counter-cyclical when it comes to hours billed.

PG wonders if substantial reduction of the firm’s website and other online activities is a good idea. Even considering the value of time that might otherwise have been billed, a law firm’s website is one of the first places a sophisticated prospective client is likely to investigate.

In PG’s almost-illegally humble opinion, a great many law firm websites, even those of large and prosperous firms, are quite lame. Large spaces devoted to meaningless graphics on the landing page, more overly-large spaces devoted to a cookies warning (do law firm sites really need cookies?) and generic headlines like “Innovative Thinkers, Client Service Leaders, Champions of Inclusion,” and “Resilience, Recovery and Renewal” are all too typical.

Like a great many intelligent people in other professional fields, attorneys tend to think that expertise in one area (patent law, for example) transfers over into a great many other areas (advertising, website design, promotion, investment strategies, etc., etc., etc.). Such is most definitely not the case.

8 thoughts on “The Legal Web”

  1. As usual, PG is too humble and too nice about the legal profession…

    (1) Lawyers are specialists, Model Rule of Professional Conduct 7.2(c) (which prohibits a lawyer from using the “s” word to describe herself except for the patent bar and a very few certifications for things like “California death-penalty defense”) be damned. The Rule itself is exceptionally weaselly, but every state bar with a history of enforcement under the Model Rules has held that saying “specialist” necessarily implies “certification” and therefore the prohibition applies.

    The irony that lawyers aren’t allowed to tell the truth about their practices/expertise in ordinarily language that the public would understand (like the plumbing company that “specializes in trenchless technology,” as heard on the radio yesterday morning) is one of the primary ways that lawyers get involved in matters beyond their expertise, and that’s too much to accept for me.

    (2) Probably a third of the legal malpractice out there results from lack of expertise in specific areas of law (as opposed to in obtaining and understanding factual material, with is another third, leaving only a third from Other Stuff ranging from administrative incompetence to substance abuse to evil intent that can’t quite be proven as such). This is a particular problem at the intersection of/interaction among intellectual property law, taxation, family law, and trusts-and-estates law. Combine that with the obstinate struggle among state courts of special jurisdiction (family and probate), federal district courts concerning copyright, and tax courts — not to mention bankruptcy courts! — to have the Last Word; one is left wondering how any dispute every gets accurately foreseen, let alone resolved.

    As a cautionary tale for authors that I’ve mentioned here before, consider the estate of Andre Norton. But not in the dark, or after the power goes out… it’s a bit too scary for that, and what didn’t even make it to the Tennessee Court of Appeals is actually scarier. The fundamental cause was that lawyers without adequate expertise thought their other expertise was sufficient, especially when it revolved around treating taxes as the ultimate evil (and cutting corners on the tax procedures and bills as always justified, regardless of the other complications and risks that created).

    But if you spend time learning, you’re not billing, either…

    • All correct, as usual, CE, but you didn’t add that the largest cause of legal malpractice is attorneys with substance abuse problems.

      My doctor (and MedMal plaintiff attorney) friends tell me there is a similar correlation with medical malpractice.

      • I have to strongly disagree with both PG and his esteemed colleague(s). Substance abuse is not insignificant, but is perhaps (and only perhaps) the “largest cause of legal malpractice” when someone with standing to object complains of, or even notices, the malpractice. When no one with standing to object actually objects, though, a lot gets swept under the rug — and I don’t mean either old-fashioned hairpiece or newfangled hair “replacement” technology! — but gets kept inside of privilege later on when someone else examines things after the statute of limitations is long gone. The profession is far too complacent in falling back to “there but for better access to Wexis go I,” especially among the judiciary.* Then, too, there’s a difference between “was, in hindsight, wrong” and “made a mistake due to incompetence” that distorts the inquiry even further.

        Consider this non-hypothetical: An attorney involved in one particular fiasco had some experience — in another state — in setting up holding corporations for small-to-medium residential and commercial real-estate vendors. Said attorney decided that since it was about holding “property,” neither jurisdiction selection nor the nature of the property mattered. The corporation itself was legal in its own jurisdiction, and was maintained in a facially proper manner… for fifteen years. That’s well outside of any statute of limitations; indeed, the lawyer in question had entirely left practice before the estate plan relying upon that corporation was prepared. And that was half a dozen years before the author died (and was itself incompetent for different reasons). Conversely, there’s no evidence or record of substance abuse (or similar addictive behavior like gambling) involved anywhere. By my count in the real matter on which this is based, either six or seven attorneys in three different jurisdictions failed to come even close to Rule 1.1’s imprecation that:

        A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

        There is not one word, however, of criticism of those attorneys in the judicial statements (opinions and otherwise)… or even in the pleadings or briefs. All of which, I might add, were made at least two years after the incompetence, in a jurisdiction with a one-year statute of limitation on professional malpractice claims that is notorious for its expansive view of when a reasonable person was on inquiry notice of possible malpractice.

        That’s just one example. If you want another, there’s an “author’s estate” matter for a purported “giant of American letters” in the early stages of potential Supreme Court review in which the incompetence — and it’s bloody obvious — was by a future high officer of the state bar. Over half a century ago. And it’s still in litigation. I could go on for a while with other concrete examples…

        * Side note: The circular logic of bar authorities deferring to the judiciary to deal with matters in their courtrooms, in the face of the judiciary refusing to deal with misconduct not related to procedural rules and instead deferring to the bar authorities, drives me mad. Or it would drive me mad if I hadn’t long ago taken up residence in a state of madness.

        • C.E. – I’m not certain whether we disagree or not.

          I think there is a difference between the underlying reason for the act or failure to act and the nature of the particular behavior that leads to a malpractice suit.

          To the best of my knowledge, a client can’t sue a lawyer for malpractice because the lawyer is addicted to or abuses drugs and/or alcohol. It’s what the lawyer does or doesn’t do in a professional capacity while living a life strongly influenced by addictive behavior.

          In 2016, the ABA and the Hazeldon Betty Ford Foundation conducted a joint research program on Attorney Substance Use and Mental Health Concerns https://www.hazeldenbettyford.org/about-us/news-media/press-release/2016-aba-hazelden-release-first-study-attorney-substance-use

          Here’s a quote from a Hazelden report titled “Attorneys and Substance Abuse” http://www.hazelden.org/web/public/document/bcrup_legalresearch.pdf :
          “The American Bar Association reported that 27% of disciplinary cases involved alcohol misuse by attorneys (Brooke 1997), and the longer attorneys with substance-related problems remain untreated the more likely they are to be defendants in malpractice suits (Benjamin et al. 1990). For example, of the 100 attorneys that entered the Oregon State Bar Professional Liability attorney assistance program, 60% had a malpractice suit filed against them while suffering from substance abuse (Benjamin et al. 1990).”

          From a 2017 report from The National Task Force on Lawyer Well-Being, created by a number of ABA entitities and other legal and judicial organizations
          https://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingReportRevFINAL.pdf

          “Troubled lawyers can struggle with even minimum competence. At least one author suggests that 40 to 70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance use or depression, and often both.”

          As we each know, The State Bar of California (as well as many other bar associations) requires that each lawyer participate in Continuing Legal Education programs concerning addiction and mental health problems.

          From The California Bar Journal

          ““It’s so alarming because it paints a picture of a profession that is very unhealthy in terms of behavior,” he said. Attorneys are “trusted with people’s fortunes, people’s rights and with people’s lives. And if between one in five or one in three have an alcohol use disorder, the public is not being protected.”

          https://www.calbarjournal.com/March2016/TopHeadlines/TH1.aspx

          Not surprisingly, legal malpractice insurers are very sensitive to the consequences of substance abuse by attorneys.

          See:
          https://www.l2insuranceagency.com/blog/attorney-malpracticestress-substance-abuse-in-the-practice-of-law-results-in-suspension.aspx

          https://www.propertycasualty360.com/2018/12/04/another-hazard-of-poor-attorney-mental-health-malp/?slreturn=20200408170402#

          • We do disagree. Much more harshly than I would ordinarily state it, my point was that substance abuse issues get noticed because they’re non-critical-of-judgment-and-intelligence rationales for “why” malpractice occurred that have a specific “remedy”. Baseline incompetence, narcissism, and Dunning-Kruger… not so much (especially when they implicate the bar exam’s limit; it is at best a doctrinal-assimilation tool masquerading as a competence-screening tool).

            Which is not to say that substance abuse deserves no attention. It is to say that the meme that it’s the “biggest cause” masks a lot of other problems that would be much harder to fix and would involve existential criticism of what constitutes “fitness to practice” that the medical profession went through a century ago and the military profession went through half a century ago (but are still constant struggles there; at least they’re engaging with the struggles).

  2. Is it possible that, besides an economic slump, billable hours are also being negatively affected by the even slower walk in the justice system, caused by the lockdowns? Much of the process was not set up to do everything remotely.

    • Depending on what part of the law world you work in, slowing down the court system can be (and is currently) very harmful for a law office’s cash flow, WO.

      Even more than attorneys working on an hourly basis, lawyers working on a contingency fee basis are going bonkers right now.

      • And the less said about actually collecting the earned contingency fees — especially when they’re based on percentages of what is actually paid to clients in structured/long-term settlements and the equivalent — the better. I know two contingency-based solo practitioners (one in personal injury, one in business torts) who have prepared bankruptcy petitions because they’re not getting paid… because their clients (who are timely payors themselves) aren’t getting paid.

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