Now hold on there.  This post is not about solid clients who, because of the economy or because they just want value for their hard-earned dollars, are interested in re-negotiating attorney fee agreements.  The lawyer-client relationship is ideally a symbiotic one.  The lawyer helps the client to resolve a problem at reasonable cost, and in turn hopefully earns the client’s loyalty.  When a client is feeling the effects of a recession, the lawyer should be willing to re-define “reasonable.”

No, I am prompted to write because of an advertisement currently running in the local legal paper’s classifieds section.  It says:

Litigator Needed: experienced litigator to accept two cases for $ 75/hour.  Possibility of additional work.

This advertisement is a grievance just waiting to happen.  It has been running for two weeks or so, and I console myself with the thought that it is still running because no one has responded.  Otherwise, the responding lawyer may well become my client. 

There are only two sorts of lawyers who will likely respond to such an ad.  The first is the recent law school graduate who needs work, any work.  I feel for this person.  He or she will probably make a fine lawyer some day, but has not yet learned to spot the clients to be avoided at all costs.  Also, he or she will not be experienced, but may be retained anyway because no one more experienced applies.  I can almost picture this client in my head.  He (sorry, but I suspect it’s a he) will avoid scheduling a meeting with the lawyer, and instead will mail a large stack of papers, probably including pleadings from a case that has been lost at the trial level, as well as a  five page letter describing all of the reasons why the case was lost (almost certainly because the previous lawyer “bungled it” or actively conspired with someone to lose the case).  You get the picture.

Young Lawyer will read the stack of papers and think, “Aha!  This is a meritorious case!  I know that Precedent X applies here, how could the trial court have gotten this so wrong?”  And Young Lawyer will discover that the time for filing an appeal has lapsed, or that there are only a few days remaining, or something along those lines. 

Young Lawyer will compose a letter to Client.   In it, Young Lawyer will convincingly argue for a certain position, whether it is to file the appeal, or the lawsuit, or the administrative complaint, and to take such and such a strategy.  Client will respond with a mostly illegible fax within five minutes of reading the letter, instructing Young Lawyer to proceed immediately!  And Young Lawyer will.

But as Young Lawyer begins to delve more deeply into the matter, he or she will discover that all is not as Client had represented.  Perhaps Client has already litigated to the SCOTUS certiorari stage (if so, this is really a bad one).  Or Client may be on the FBI’s Most Wanted List.  The problem could be many things, but whatever it is, the likelihood of success on the matter will be greatly reduced. 

Young Attorney will be worried, however, about disappointing Client.  Young Lawyer will also be worried about fees, because Client will almost certainly not have forked over any money at this point, and Young Lawyer has student loans to pay.  So Young Lawyer will forge ahead towards doom.

And when things go bad, Client will blame Young Attorney much as he blamed Former Attorney.  A grievance will be filed.  A pro se malpractice complaint may also be filed.  Now Young Lawyer has to contact his or her professional liability carrier (this is true, generally speaking, even if there is a deductible).  But Young Lawyer cannot afford a higher insurance premium and attempts instead to settle with Client.  But because Client and Young Lawyer are now adverse, Young Lawyer will probably violate an ethics rule in doing so, and things will continue downhill from here. 

The other sort of lawyer who would possibly respond to this advertisement is the more experienced but down and out lawyer.  His best days are behind him (five years ago he was a partner at a well-respected firm but left rather suddenly to form a solo practice, quite possibly out of his home).  Hopefully his student loans are paid off, but he has a mortgage and children in private schools.  He is wise enough about these things to know that this will be a problem case, but he needs the money.  In fact, he probably asks Client to pay him an “engagement fee” which he will deposit directly into his operating account even though he has performed no work.  Experienced Attorney will rarely return phone calls or respond to faxed requests for status on the case.  He might file necessary papers, or he might not.  He will likely tell Client, when he does communicate with him, that the papers have been filed.  Client will call the court to verify.  And then, another downward spiral. 

I am not making fun of these attorneys.  At all.  I genuinely sympathise with them.  But they never seem to take my advise, and become repeat clients.  This I regret.

The advertisement should set off all sorts of warning bells for you.  First, it’s a blind ad in the legal paper.  This means Client has telephoned or written to all of the lawyers in his general area and no one wants to take the case.   Not good. 

Second, Client has two cases, apparently.  That could be legitimate.  People sometimes get involved in business disputes while they are simultaneously divorcing, etc., etc.  But how many of your non-institutional clients have ever had more than one case at a time?  And how many people with business disputes are looking for $ 75/hour representation?   Not many.  Not good. 

Third, Client is only willing to pay $ 75 per hour.  This suggests either that Client hates lawyers, considers their normal fees to be usurious, and wishes to “show them who’s boss”.  Or, Client is extremely cash-strapped, and if that’s the case, Client is unlikely to pay you or to be able to provide a satisfactory retainer.  Both, not good. 

Fourth, and finally, Client suggests the possibility of “future work.”  This suggests that Client is extremely litigious and/or does bad things so often that he is frequently sued.  Maybe, you say, Client is a business and needs a collections lawyer?  But I don’t think so.  Such lawyers generally work on commission, and if the sums to be collected are so low that they’re not worth paying commissions on, they probably shouldn’t be pursued.  The debtors won’t pay, the judgment will have to be collected on, and eventually Client will grow infuriated that his legal expenses outpace his likely recovery.  Hmm.  Not good. 

You don’t need this work.  Trust me.  You don’t.  Walk away.

The great myth about the good old days – of law practice and in general – is that there were good old days at all. 

The media has of late been declaring Biglaw dead.  Downward pressure on the hourly rate is encouraging partners to depart for smaller firms.  Even white shoe firms are talking about alternative fee arrangements.  The notion that clients should not be billed for the time of inexperienced associates is understandably gaining some traction.  Firms have laid off and deferred associates, slashed summer programs, and cut back on hiring.  A vocal if disorganized bunch of law students and never-associates are grumbling online about the law school “scam.”    

But realistically nothing has changed.  That’s what I think when I read Edgar Lee Masters’ Spoon River Anthology

Masters was a prolific writer with novels, biographies, and plays under his belt, but he is best known for his collection of poems memorializing the residents of a fictional town.  Spoon River was set in Fulton County, Illinois, not far from where Masters spent most of his life practicing law.  For about five years – well before the Scopes or the Leopold and Loeb trials – Masters partnered with Clarence Darrow.  (Darrow himself, despite his reputation today as a hero of labor and the underdog, once represented a Chicago landlord in his effort to have a tenant committed to an insane asylum because she had not paid her rent.  Not really relevant, but an interesting fact.)  During this time, most biographies of Masters report simply that he “defended the poor.”

But as lawyers we know this means he probably collected very little money.  The two quarrelled; Darrow’s indictment for perjury and jury tampering didn’t help things (although Masters conducted depositions in Darrow’s defense.  See the transcript here: http://darrow.law.umn.edu/trials.php?tid=17 .)

Masters and Darrow parted ways and Masters formed his own firm.  During this time Masters began writing the poems that would become Spoon River Anthology

The poems were serialized before they were collected and published.  It’s not the sort of thing you read in a single sitting.  Although Masters befriended the likes of Carl Sandburg and Theodore Dreiser, his own poems, I think, reflect a wry lawyer’s pragmatism about the people he represented.  No modernism here.  The voices of Spoon River sound like the voices of the people who flow in and out of any law office, as clients or otherwise. 

Keep in mind that while Masters was practicing law and writing his poems, the Bolsheviks were seizing control of Russia, the Boer Wars were being fought in South Africa, Standard Oil was under antitrust scrutiny and unionized labor was transforming the American economy.  Women in the United States and Britain were demanding the right to vote.  The Constitution was amended to permit a federal income tax.  The Federal Reserve was created.  The Lusitania was sunk.

It was a time of unprecedented change.  But what concerned Masters in his poetry were people like “Jack McGuire”, who would have been lynched if his lawyer hadn’t struck a back room deal with a judge – http://spoonriveranthology.net/spoon/river/view/Jack_McGuire.  Or Lydia Puckett, whose spurned lover “stole the hogs and went to war” – http://spoonriveranthology.net/spoon/river/view/Lydia_Puckett.  Or Doctor Meyers, who went to prison for performing an illegal abortion –http://spoonriveranthology.net/spoon/river/view/Doctor_Meyers.  Personally, I imagine each of these characters sitting in a chair on the other side of Masters’ desk, although that probably isn’t fair to him as a writer. 

There are plenty of parallels in our modern world to the early twentieth century.  I like to think that Masters’ focus in the midst of all this social and economic turmoil was in the right place.  Lawyers have seen change before.  It comes in cycles.  We call it outsourcing or contract lawyering or what have you, but what matters now is what mattered to Masters: the relationship between lawyer and client, lawyer and lawyer, lawyer and community.  We bring boats to the sea change, we adapt, and we go on.