"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, July 19, 2016

My case is so easy, or, a message to an attorney from potential customers - we want you to do your absolute best for us, working as much as needed for the case, but we only want to pay you for "capped hours"

When I practiced law, I tried to stay away from people who claimed that their case is "so easy, it is a slam-dunk to win it".

There were many people who said that when initially calling for a fee quote for an entire case - which I, of course, could not give.

Once you file a case in court, you have an opponent, and you have the presiding court.  You do not have a unilateral control as to how the case will progress.

Nor do people with lack of specialized knowledge about the law know how their case may progress.

And, before getting to know the facts of the case, and sometimes, before doing discovery, or preliminary discovery, which often involves reviewing massive amounts of documents, an attorney cannot in good faith make up his or her mind as to the merits of the case, or the full scope of issues involved in the case.

Moreover, many potential clients withhold important information from an attorney when hiring an attorney, to make the case look like a simple case and in an attempt to make the fee lower.

Which is where I am going with this post.

Yesterday, I've read a blog of the fellow blogger from Pennsylvania who posts a lot of valuable information on her blog regarding the judicial system.

But, I wholeheartedly disagree with the message she has sent in the two blogs posted yesterday, which I will address in my blog due to importance of the message.

The blog Pennsylvania Court Watch advocated in the yesterday's blog for putting a cap on the hours worked by lawyers and, thus, the allowable fee upon attorneys to be charged in any particular case.

The issue raised by the article "Why Hurry When You Are Getting Paid By The Hour?" raises important issues, that per-hour (as opposed to a "per job" or "per capped-hours per-hour service" payment provides an incentive to lawyers to stretch litigation for years, to be paid by the hour.

That may be true - as it is true for any service providers who charge by the hour, such incentive does exist.

If you hire a contractor to work on your house, and you pay by the hour and not by the job, there is a potential that the contractor will "milk the job" and work for longer time than is required to conclude the job.

And, even in the contractor's situation, when a contractor is accused of "milking" the job, the contractor does not entirely control the time limits - there may be intervening circumstances such as the weather, requirements to meet certain regulations, unavailability of materials etc.

In an attorney's situation, issues beyond control of the attorney that may prolong litigation may be, as I mentioned above, and that is not an exhaustive list of issues:

  1. opponents actions (counter-claim, discovery, motion practice, requirement of a jury trial);
  2. court actions (adjournments, conferences, required mediation etc.);
  3. non-disclosure of important issues by the client at the outset of the case that complicate or prolong resolution of the case;
  4. issues that get discovered during the discovery process of which neither the client nor the attorney were aware at the time the case started - that is why the process is called "discovery".

Now, a potential client advocates to the court that an attorney the client hired to work for him on a court case must be MADE to charge the client only for a limited number of hours - while leaving intact the attorney's malpractice liability for negligence to the case, and while not lowering expectations to the outcome of the case.

You know what will happen next?

What is ALREADY happening in the State of New York, on appeals for indigent individuals in the Appellate Division 3rd Department - you do not know whether your appellate attorney did or did not work for you on appeal at all, because the appellate attorney's fee is capped at $4,700 per job.

Is it a lot of money?  It appears to be.

And, with an hourly rate of $75.00 that the cap is applied to, the fee covers 62 hours 36 minutes, or 3,756 minutes of an attorney's time.

Appears to be enough to do an appeal.

But, it depends.

I am aware of a case where the trial in Family Court, where the appeal was subject to such a cap, went for 3 weeks, and there were many proceedings before trial - the case was a combined child neglect/ child custody case.

Only the transcript of the three-week trial contained hundreds of pages.

An appellate's attorney due diligence duty is to first READ the record to be able to make a determination as to which appealable issues are present, which are important, which are more important than others.

An attorney who reads the record of an appellate case, should not be requried to turn the reading - and issue spotting - into a speed-reading stampede.

Sometimes it takes a minute to read a page, sometimes it takes an hour or more - because an attorney must deviate from reading, as soon as the attorney spotted the issue, to do research on the issues spotted and preserve it in preliminary notes for the brief.

If that is not done on the spot, a busy attorney - who has other cases - may forget what he or she spotted during reading.  It is not humanly possible to retain in one's short-term memory the contents of transcripts of a three-week-long trial.

Even if an attorney spends, let's say, 2 minutes on reading a page of court documents (that's without research and without taking notes), that covers reading of 1,878 pages of court documents.

So, if there are more pages than that in a court record - and often, there are, I was given a SUITCASE full of records by Delaware County Social Services full of discovery documents 2 days before a child neglect trial once - any reading the attorney does beyond that amount, is not paid.

Not paid - and that is with a $75 per hour rate which, while it is high for many people, as compared to the average hourly rate in the U.S., is lower than private law firms charge for a paralegal's services.  Attorney's fees in upstate New York start at $175/hour, and are a lot higher in large cities - with the rental, payroll burden of personnel going into the fees, and the cost of education and CLEs required by the attorney regulation going into the fee.

So, if an appellate attorney in the New York State Appellate Division 3rd Department is paid for 1,878 pages at the reading rate of 2 minutes per page, the attorney is NOT paid for:

  1. reading any records over that page limit;
  2. putting together the Record on Appeal - which is a lengthy process taking a lot of time;
  3. arranging for stipulation of the Record on Appeal - as required by the court rules;
  4. arranging for stipulation of the transcripts - as required by the court rules;
  5. taking notes while reading those pages;
  6. doing research of the issues;
  7. making the necessary amount of drafts of the Appellant's Briefs - and I can tell you, from the position of an attorney who has won many appeals, that drafting appellant's briefs is a gruelling work that sometimes reaquires 8 to 10 drafts to complete.

We are not mentioning that the cap of maximum amount charged or maximum amount of hours worked on a case may also regulate prices in the legal profession - and price-fixing in any industry is not allowed by federal antitrust laws.

Without the price-fixing, the amount of hours worked on a case will still result in more money paid to attorneys who charge a higher fee - and that includes a higher fee for experience and skill.

If the same cap of $4,700 per appellate case is applied to a private attorney, the number of hours that a skilled attorney may work on a given case will shrink to as little as 13 hours.

This way, regulation that consumers bring upon attorneys to pay less, may result in (1) discrimination against skilled attorneys,  (2) a prohibition for skilled attorneys to charge more for their skill, because that will result in less hours they are allowed to work on the case will result in attorneys being paid less, yes, working less, yes - but to the detriment of the same client.

In other words, the requirement that the government, as a regulator, must fix prices of attorneys and the number of hours a given attorney is allowed to work per week will result in attorneys not providing the best quality of work, and neglecting cases - and that is not what a customer would want from them.

Also, there are stages of litigation that are less labor-intensive and more labor-intensive, and the intensity of the attorney's work is dictated by statute of limitations - established by courts, scheduling deadlines - established by courts, and rules of courts - also established by courts.

For example, in New York, discovery and motion practice in a criminal case is jammed within 45 days from arraignment.  If you didn't do that as a defense attorney - you waived your clients' rights.

So, you need to work for as long as needed to obtain, read, review, research on and make the motions based on as much information as you could uncover to help your client - and that's what your client wants from you.

After you filed the motions, there may be a slow period on the case where motions are under the court's review, and slow-pace plea negotiations may be under way - as well as some preliminary trial preparation, but not at a rush-speed.

When a court schedules certain amount of work to be done on the case by a certain deadlines, that requires of an attorney, through attorney disciplinary rules and rules of due diligence (violation of which may result in a malpractice lawsuit) to engage in all reasonable efforts to provide the best of service for the client for that particular portion of litigation.

I do not think that a client would want an attorney to engage in the following thinking exercises:

1) ok, so the court scheduled the deadline to complete discovery in case X at 3 months from now;
2) I am allowed to work on this case Z number of hours per week;
3) my client just delivered me two large boxes of documents for review;
4) I already spent my hours per week on the case reading through 1/10 of documents;
5) I will not cover my own bills if I do not take other cases, parallel to this one;
6) so, I will stop working on this case until the next week, because I have reached my cap of hours this week.

As a result, with a cap of hours imposed upon an attorney to work per week, the client will never know whether the attorney actually read the boxes of documents or not, when the attorney tells him that he/she did not find anything significant in those documents.

And, it will be beyond the point to tell the attorney - but, you know, on page 1,500 in the box 4 I've sent to you, it said - and you overlooked it.

Not only overlooked but, likely, did not even read it - because the capped-hour minimum per week expired before the attorney reached that page by the time he had to complete a certain stage of litigation for which the reading of that page was meaningful.

A requirement to cap off attorney hours or fix prices is a requirement to submit the attorney to slavery - because such a requirement does not take into account the cost of doing business as an attorney.

If attorneys are not able to break even - with the cost of education, maintaining a law license, a malpractice insurance, costly CLE requirements, cost of legal research, the overhead of the office including rental and the cost of auxiliary personnel - there will be no services provided at all.

If the regulation is making clients not be able to afford an attorney, the answer to the situation is not MORE regulation, but LESS regulation.

If the market of legal services is deregulated, and the cost of law education is not inflated any more by the regulation requirements, and the cost of maintaining a license is eliminated, and people have more choice as to who would represent them in court and at what price, then the issue raised in the article about dragging on with litigation will not be an issue any more.

But, stripping an attorney from the ability to set a price for his own services, making an attorney to work many hours on a case for free in order not to commit malpractice is not going to help consumers.

Because slave labor was never diligent or efficient - which is shown by results of indicgent appeals in the 3rd Department worked on by attorneys whose services are capped at $4,700 per case, at an hourly rate of $75/hour, no matter how big the record is.

The appellant will never know whether the attorney actually read the portions of a lengthy record - because the attorney was not paid for it.

And, a litigant in a trial court will never know whether the attorney did his or her absolute best for the client - because the attorney's hourly rate and hours were capped off, so, where the case required diligent work for longer hours than were provided by the cap, those longer hours were simply not provided by the attorney, and rightfully so.

Because in this country slave labor is a XIIIth Amendment violation, and the government taking people's property without due process of law - including by capping the fees they can charge for their services to break even as to the costs of doing business and earn a living - is a due process violation.

One cannot expect to have access to justice provided through enslaving the providers of such access.  That would not be justice, would it?

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