It seems like all I have to do is begin what I intend as a series of posts, and my practice gets so busy, that I can’t get back to it.
More than a year that has passed since I published Part I of this series. It has been a wild one. But being busy is not really grounds for complaint on my part, so take this for mere explanation.
I do some alternative fee arrangements in my practice, and frankly, I would rather do that than bill hourly. For example, I regularly advise employees who are losing their jobs about whether to sign severance agreements, and about what those agreements mean. I long ago learned that it takes about two hours to read the documents, get the client’s story, evaluate it against my checklist of potential claims, and advise the client about whether they have a substantial claim against the employer or not.
Most simply don’t have much of anything. A few have very valuable claims. The ability to tell the difference is of substantial value. So I price the job, with a minimum fee, not the time. Many potential clients are happy to pay for the service, and not for the time.
This kind of flat fee billing isn’t really terribly creative. But it’s a start and is only one of many ways lawyers are trying to sell their knowledge and skills rather than their time.
Creativity when it comes to charging for legal services has the potential to expand the range of clients our profession can serve, improve the efficiency with which we provide service, and more clearly align the interests of lawyer and client.
Of course, the hard truth is that most alternative fee models are based on comparisons with data generated from hourly rate cases. That suggests a characteristic of legal work that is forgotten at each party’s peril. There is an economic reality in spreading overhead costs, lawyer compensation, and profits, over working hours. When it comes to producing and selling any product or service, one needs to understand the costs.
I hope that Jay Shepard is mostly right, and that hourly billing will give way to more effective ways to bill for legal work within this decade.
But even if it does, I think lawyers and law firms will always have to understand the cost of providing legal services that comes from accurate time-keeping. That reality, and understanding the economic worth of one’s time, spreads beyond the business of practicing law, and into our work/personal life balance. Time is a non-renewable resource. To create the right balance, lawyers have to understand the value of their time in money, and make reasonable judgments about how to spend that resource.
For 17 years the American Bar Association has sponsored ABA Day in Washington. ABA members walk Capitol Hill for a few days, meeting with their Senators and Representatives, and urging them to act to advance the ABA motto, “Defending Liberty, Pursuing Justice.” For most of the last decade, I have joined that effort.
Year in and year out, the most concrete expression of that ABA ideal has been straightforward: ABA members have urged members of Congress to increase funding for the Legal Services Corporation. The LSC is the vehicle the federal government uses to support civil legal aid for the poor.
This year’s effort was no exception: Last week, ABA members worked to persuade Congress to support the Obama Administration’s budget recommendation of $430 million dollars for LSC. They also urged adequate funding for the judiciary and action to timely fill federal judicial vacancies.
As usual, these requests did not present heavy lifting for the Vermonters in attendance, who included Vermont Bar Association President Amber Barber, VBA President-Elect David Fenster, Vermont ABA Delegate Fritz Langrock, VBA Executive Director Bob Paolini, and me, in my role as the Vermont Bar Association’s representative to the ABA House of Delegates.
Each member of Vermont’s Congressional Delegation, Senator and President Pro Tempore Patrick Leahy, Senator Bernard Sanders, and Representative Peter Welch, has an unblemished record of support for these issues. Our meetings with the delegation largely consisted of thanking the members for their past support.
Still, our visits this year carried a different, discouraging tone. There was no talk, as there had been in the past of a “Dear Colleague” letter to point out that, even before sequestration, LSC funding is far below FY 2010 levels, as demand for legal aid continues to grow. In the midst of a tectonic clash over fiscal priorities, such a letter would be a waste of ink. Attempts to strategize about how to encourage increased funding quickly bumped up against the realities of fiscal politics. Even Senator Sanders —who in past visits has chided the ABA for not seeking more funding for the Legal Services Corporation — held out little hope that the Administration’s LSC funding recommendation would be approved.
As I circulated among ABA members from other states, I could find no optimism. In fact, ABAers from red states seemed largely unable to engage their members of congress in real discussion about the needs of the poor for access to justice. One of my ABA colleagues from a red state shared with me his congressmen’s view that legal aid was “rampant with fraud.” No evidence of fraud was cited.
ABA Day Attendees Enjoy A Reception at the Library of Congress
In the past, entreaties from home-state lawyer constituents have, from time to time, helped persuade legislators to direct a little more money toward providing access to civil justice for our poorest citizens. It looks like this year, the highly partisan tenor of a deeply divided Congress means that such efforts fall on deaf ears.
Barring some unforeseen development, only the voters can bridge this divide.
I’ve been reliably advised that the usual “Dear Colleague” letter in which some Senators urge the rest to support increased funding for the Legal Services Corporation showed up after ABA Day last week. Senator Leahy and Senator Sanders signed it, as they have in the past.
Yesterday, New Mexico Governor Susana Martinez vetoed the New Mexico Uniform Collateral Consequences of Conviction Act, Senate Bill 158. This is the second time that Governor Martinez has vetoed the Act. (See The Bad News: No Enactments of the Uniform Collateral Consequences Act This Year, May 19, 2011). The New Mexico statute, sponsored by State [...]
I think of myself as a political liberal in the classic sense of the word. That is to say that I believe the society should embrace change, rather than resist it. In current political debate, the difference between liberals and conservatives is more commonly thought of as the choice between those who believe that government [...]
The American Bar Association met last weekend in Dallas Texas. Thanks to winter storm Nemo, I missed the meeting – the first time I have not made it to an ABA midwinter or annual meeting in some 15 years. In Vermont, the storm was really no big deal. We had 8 or 10 inches of [...]
A few weeks ago, a client who is also a friend and I agreed to have lunch at a local restaurant. I arrived first, and within a few minutes, my friend arrived. He is an ebullient fellow, and as he joined me he was in his usual, buoyant mood. We shook hands and as we [...]
Last time I wrote about the non-financial aspects of assessing a lawyer’s year and career. As I did, I acknowledged that, at least for those of us who are in private practice (and therefore “in business”), “making money is essential.” Indeed it is. I am in a small firm and, of necessity, we watch our [...]
At the end of the year, lawyers and law firms sit down and assess the year’s performance. For most, that’s primarily a financial analysis. After all, we are in business, and making money is essential. For many, it is of the only real measure of success. There are lots of ways to make one’s living. [...]
Regular readers of this blog are likely familiar with the Uniform Law Commission. It’s an important part of my professional life and a subject I write about frequently. Currently, I chair the Commission’s Committee on Scope and Program. That Committee is responsible for vetting proposals for new uniform and model laws and making recommendations to [...]
The Uniform Law Commission’s Drafting Committee on Fiduciary Access to Digital Information conducted it first meeting November 30 through December 1, 2012 in Minneapolis, Minnesota. We live in a world in which digitally stored information is of immense and increasing importance. Digital property can have, and often does have, very significant value. According to McAfee, [...]
“‘How about trusting me?’ I suggested. ‘no criticism of the Almighty, of course, but I wonder if He’s had quite as much courtroom experience?’” — “Rumpole And The Age of Miracles,” p. 88 from “The Third Rumpole Omnibus” (Penguin Books 1998).
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