Last weekend, thanks to the hard work of a nephew who was among the graduates, I was privileged to attend Commencement Ceremonies at the University of Miami School of Law.

Although I have often been critical of American law schools for not doing enough to prepare law students to practice law, I also think that, within the scope of what they try to accomplish, our law schools do great job.

The degree, “Juris Doctor” was conferred on nearly 400 bright, energetic law students on Saturday May 12, 2012, in a graduation presided over by former Health Education and Welfare Secretary , Donna Shalala, now the President of the University of Miami, and Law School Dean Patricia D. White. Nearly one hundred students received masters of law degrees, and some, like our young relative, received both. The enthusiasm and delight of the graduating seniors, and the assembled faculty, family and friends, was palpable.

The Honorable Adalberto José Jordán, Jr., United States Circuit Judge for the Eleventh Circuit Court of Appeals, and a 1987 University of Miami Law alumnus, delivered a very simple, straightforward, Commencement Address. He said that lawyers belong to a noble profession, despite negative impressions held by many members of the public.

He told the graduates that he hoped that in 25 years– even if they could not remember who said it and when– they would recall that integrity, reputation, and trust, are a lawyer’s most important assets. He said that “no case, no client, and no cause, is worth doing what you know is wrong” and losing your integrity and reputation.

Judge Jordán’s message is a worthy one, one every lawyer would do well to remember.

Rich

On Sunday, the Trustees of the Vermont State Colleges announced a unanimous decision to name Castleton State Colleges’ new conference center and 162 bed dormitory, “Hoff Hall,” in honor of former Vermont Governor, Philip H. Hoff. Construction of the new facility, to be totally solar powered, is underway and is slated for completion in June.

The announcement capped a luncheon at Castleton State College honoring Hoff, and the authors of a new book about his impact on Vermont, “Philip Hoff: How Red Turned Blue in the Green Mountain State,” by Samuel B. Hand, Anthony Marro, and Stephen C. Terry (Castleton State College and University Press of New England 2011).

Marro and Terry described how the book was written and read from it. Marro and Terry both covered the Hoff Administration as young journalists. Co-author Sam Hand, a Professor Emeritus of History at the University of Vermont, is an authority on Vermont political history. The book ends by noting that despite Hoff’s contributions to the transformation of Vermont, “[f]ifty years after he first went to Montpelier as a freshman legislator, there were still no physical monuments to the eighty-six-year old Hoff.”

Speaking for the Trustees, Castleton College President Dave Wolk, VSC Chancellor Tim Donovan, VSC Board Chair Gary Moore, and Trustee Martha O’Connor, took care of the oversight, unveiling a photographic rendering of what will become “Hoff Hall.”

Some one-hundred guests included Hoff, for whom the announcement came as a surprise, his wife Joan, two of their daughters, and a granddaughter

Hoff, noting that good politicians know when to stop talking, thanked the Vermont State Colleges briefly.

The Colleges plan a formal dedication of “Hoff Hall” for August 30, 2012.

Rich

I’ve been out straight, and just haven’t had a chance to post for several weeks. Fortunately for me, Sophie Kinsella, a financial blogger, offered the guest post set out below. I’m glad to have it, and would only add that states concerned about debt settlement companies should take a look at the Uniform Debt-Management Services Act, as amended in 2011.

“The FTC has passed a new set of rules for all the for-profit debt settlement companies soon after the BBB received a number of complaints against the deceptive practices taken resort by the debt settlement companies. According to recent reports, the Attorney General of Ohio, Mike DeWine sued a couple of debt settlement companies in California accusing them of overcharging the consumers who are already going through a distressed financial state. Most of the things that are promised by the debt settlement companies aren’t delivered and this is causing enough concern among the hapless debtors.

According to the lawsuit, Jeremy Nelson, a representative of Trabuco Canyon was misleading the consumers by claiming that their company is able to cut the debt amount by half and relieve the debtors of the increasing debt burden. If you too have been subject to such claims from debt settlement companies, you should be aware that they’re just scamming you into taking wrong decisions about your debt.

As per the lawsuit that has been filed in Franklin Country Common Pleas Court, the companies in question have been accused to charge the debtors with a fee of $199, which is higher than $75, the initial consultation fee that is actually allowed by the Debt Adjuster’s Act within the state. The debt consultants who were responsible for negotiating with the creditors haven’t shown enough concern. The consumers who were already behind on the monthly credit card payments fell further behind as they were asked not to make payments to the credit card companies while working with the debt settlement companies. The company consultants weren’t able to produce the results that were promised by them and they even failed to give refunds to the consumers who didn’t receive the promised services from the companies.

The Attorney General, DeWine lawsuit even reported that the companies portrayed them as a law firm but they mislead the consumers in taking wrong financial decisions by posing to be trustworthy firm. The consumers who signed up couldn’t ever contact the lawyers to complete this process. The lawyers who practice in California require being members of the State Bar of California and according to this organization there wasn’t any record of Jeremy Nelson to practice law.

As there are an increasingly large number of debtors who are facing similar issues with the debt settlement firms, the FTC has passed the rules according to which no for-profit debt settlement firm can charge upfront fees from the debtors before reducing a portion of the outstanding debt burden. They should represent the services in actuality and not boast things that they’re not capable of doing. The debt consultants who are working over the telephone should not misrepresent their services so as to gain customers. If you come across such debt settlement companies, you should be aware of the rights and immediately file a complaint with the FTC for the required steps to be taken.

Therefore, as there are more and more news about the deception of the debt settlement firms, you should remain watchful while approaching such a firm. Make sure you don’t work with a scam company as you may end up falling in huge amount of debt in the near future due to the illegal steps taken by the debt settlement companies.”

Thanks Sophie!

It was Abraham Lincoln who famously said: “A lawyer’s time and advice are his stock in trade.” Bearing in mind what he said, it is important to note what Lincoln did not say. He did not say: “A lawyer’s time is his stock in trade.”

Time is our stock, that is, it is the cost side of the equation. But it’s not really our trade, in that it’s not what clients want to buy, and it’s certainly not what they want to get.

Clients want results. Normally, results can’t be guaranteed. So client have to settle for less. If clients can’t buy results, they will buy the next best thing: attorney work product.

Advice and advocacy are actually the products clients buy from lawyers. Time is a way that we, the lawyers, apportion the cost of producing our product among our clients. But the truth is that to the client, some tenths of an hour — even from the same lawyer — are valueless and some are intensely valuable. Should the client really pay the same for very different products, even when the increments of time required to produce them are identical?

“Read perfunctory filing letter”

“Value your case.”

The first activity gets the client essentially nothing. The second, if done with excellent judgment, may make all the difference.

If you look through the literature of law office practice management for the last 10 or 20 years, you might think that Lincoln’s comment — and hourly billing itself — have become obsolete. That literature is full of writing about the many alternatives to hourly billing. It’s clear that lawyers and clients would prefer to be done with it.

For good reason. For lawyers, billing by the hour takes discipline. It is a discipline that somehow many otherwise talented lawyers cannot or will not learn. Many a young lawyer with all the intellectual skills, and even, in other respects, the temperament to be a great lawyer in private practice, is defeated by time-keeping. Many try private practice and move quickly to government service or an in-house counsel role in order to avoid it. Many stay in private practice, but have a chronic struggle with keeping good time records.

Clients like it even less. Hiring a lawyer on an hourly basis is like hiring a building contractor on a time and materials basis. The customer has no cost predictability and fears that the contractor has no incentive to be efficient.

At least one commentator, Jay Shepard, predicts that that hourly billing will be dead by 2019! Jay certainly has a point when he says, “stop selling activity and start selling knowledge.”

Thirty-two years into private practice, I appreciate the problems with the hourly billing system. I’ve always hated keeping contemporaneous time records and over the years, I’ve tried any number of different things to avoid doing it or at least to make the job more palatable. It took a long time before I found some practice management software that made it reasonably convenient to actually time my work as I do it, even when I have a day spent constantly skipping from one short task to another.

Part of my practice has always included contingent fee work (an instance where client’s do buy results!), mostly on personal injury cases. Originally, not keeping time records on such cases was something I liked about them. It felt liberating not to worry about writing down every tenth of an hour, attributing it to a client and matter, and creating a written description of the work completed. I also liked the freedom to decide, pretty much on my own, what tasks needed to be done and how much time to put into them, without concern that the client would feel the case was being “over-lawyered,” or simply could not afford to pay the bill.

But one thing I discovered about my own behavior was that, when I did not record my time on contingent fee cases, I was less efficient than in my hourly cases. By comparison, in hourly cases, knowing that I was recording my time and that a client would be reviewing my bill and be asking, implicitly or explicitly, whether the resulting work was worth the fee, I felt pushed to move fast and get the work done quickly.

My construction clients taught me something else: to price work at a profit, you must understand your costs of doing business.

As a result, for many years and on all my legal work, I have kept the most accurate, contemporaneous time records that I possibly could, even on contingent cases (The truth be told, I even keep them on pro bono cases.) As a result, I understand far better than I otherwise would which kinds of cases are profitable, and which are not, and what the cost implications of various substantive decisions about cases are likely to be.

As demand for my time has grown over the years, my own level of confidence in the fairness of the bills I render has grown with that demand. The ethics of charging legal fees requires the exercise of “billing judgment,” that is, adjusting the legal fee that would result from simply multiplying the numbers of hours worked by the hourly rate, to take other factors into account. Normally, one’s fee agreement with the client only leaves the option of reducing the bill on that basis. Early in my practice drawing my bills was a painstaking, conscience-rending process.

I still have to exercise judgment, but it’s much easier now than it was when I was a young lawyer.

Nest time, more on alternative billing systems.

Rich

Most of us have more than one role, and for lawyers, when those roles come together it can sometimes prove uncomfortable.

Last week was, for me, the opposite. Two of my roles came together in a way that proved delightful.

From time to time, I have been invited to serve as a judge in high school debate tournaments. I suppose that’s because I am a lawyer who was involved in debate when I was in high school.

The Vermont Debate and Forensics League, the Vermont Bar Association, the Vermont Principal’s Association, and the Vermont Education Association/National Education Association, sponsored The Vermont Public Forum Debate State Tournament on February 13 at the Vermont State House.

This year, I was asked to join State Senator Diane Snelling, and the former Chair of the University of Vermont Board of Trustees, Bruce Lisman, (also former high school debaters), to judge the state finals.

Some 70 student from 11 high schools competed.

Since one of my other roles is as Chair of the South Burlington School Board, I was forewarned that as our high school teams had done well in the past, I might be called upon judge a final involving a team from our school. I thought for a second, and feeling certain that I could fair, said I was glad to do it.

So, I drove to Montpelier, and was briefed on the scoring methods before being shown into our shown into the well of our House of Representatives, where the Championship round would be held. On our way into the chamber, a teacher friend from another school district stopped me. She had just completed calculating the scoring from the semi-final rounds. She said, “You don’t know who the finalists are, do you.” “No,” I replied. “You will like it,” she told me.

And she was right. Both teams in the finals were from South Burlington High School!

The round was fast and furious. The subject –”The benefits of post-9/11 security outweigh the harms to personal freedom”– presented fertile ground for the contest.

Both teams knew the subject, marshaled their evidence, and argued vigorously, but fairly. Many a practicing lawyer could have learned a thing or two from their performances.
In the end, it was a split decision with two judges voting for one team and one the other. And I know it was a close one, because on my score card the teams were both in the outstanding range, and were separated by only one point.

The winning team was South Burlington – WB, consisting of Kevin Wang and Lihu Behr. The runner up was South Burlington Team — NP, consisting of Avni Nahar and Riya Patel. Individual speaker awards also went to Kevin Wang (2nd place) Riya Patel, (5th place) and Lihu Behr (6th place).

Of course the high quality of their performances reflected good underlying education, their hard work, and effective coaching. Kudos are due their debate coach, South Burlington High School faculty member Veronica White, and to all their teachers.

My thanks go to Kevin Ryan from the Vermont Bar Association, who directs the tournament and to John O’Brien and Bill Haynes, who assist Kevin. They gave the students a great experience. And one side effect was that I got to enjoy the show and take pride in the work of South Burlington students and teachers.

I expect that these young people are capable enough to do anything they choose. But I will bet that there is more than on budding lawyer in the group.

Rich

As I’ve mentioned before, I enjoy law shows on television. One reason I do is because of the connection between the art of “film” and the reality of law. Neither is really quite independent of the other.
One of my favorite shows is NBC’s “Harrys’ Law,” In part I’m sure that’s because Kathy Bates is one talented actor. She sells it.

Of course, another reason is because of all the twists and turns of the stories. The main plot line a recent episode, “New Kidney on the Block,” concerns the efforts of a smarmy, rich young man facing terminal kidney disease to buy a kidney for transplantation.

Harry takes on the case although she knows it’s hopeless. She fights the hard fight, makes a compelling argument that commerce in human organs would be better policy than the current law, and of course, in the end, she loses.

The legal theory behind the plot line seems a little thin, but then it’s hard to argue with given that she tells her client from the beginning that he has no chance.

What reached me about the show was very last scene. Earlier, when the judge announced her decision, the client slipped quickly from the courtroom. Later, he appears at Harry’s office to thank her for her efforts. Facing nearly certain death, his smarmy façade falls away and Harry is touched by his gratitude.

Those of us who are fortunate enough to represent real people in our practices often have the privilege of standing up and fighting for our clients, sometimes against impossible odds. Even when we represent apparently bloodless corporations, some real person is our “client contact,” and often they have an emotional investment in the case that is every bit as deep as that of any individual client.

Either way, some clients just pay the money and head on down the road. Some don’t even pay.

But oftentimes, a real bond is formed between lawyer and client. That bond is an important part of the “compensation,” that comes from practicing law. It is what my law school civil practice professor, Francis X. Wallace, called the “psychic income.”

More than one of us thought Frank Wallace’s end-of-semester psychic income speech was pretty trite. And I have to admit that I’d hate to try and support myself on psychic income alone. But from the vantage point of more than 30 years in practice, I have to say that it really matters to me.

It’s hard to know what the non-lawyer viewing audience walks away with from watching an episode like “New Kidney on the Block.” But if Kathy Bates’ acting skills translated — not just across the footlights, but across the airwaves and into our living rooms — for others the way it did for me, many viewers of the episode left with a sense of the feeling that comes from fighting a pitched intellectual and emotional battle on behalf of a client who deeply appreciates your efforts, whether you win, lose, or draw.

That’s a pretty big accomplishment for a one hour comedy/drama.

Rich

I am an unabashed fan of the American Bar Association. It makes sense that I would be. After all, I have been a member of the ABA since 1979 (the year I was admitted to the bar), a member of the House of Delegates continuously since 1999, and for three of those years, 2005 through 2008, I was a member of the ABA’s Board of Governors.

I’ve invested a lot of time and energy in the ABA and I am acutely aware of the unique and important contributions the ABA makes to the legal profession, the legal system, and to the public at large.

The ABA really is the national voice of the legal profession, and if you think about it, no other organization could even hope to supplant that role. It is very important indeed. Lawyers understand the rule of law in protecting and improving our constitutional democracy in a way that few others are positioned to fully appreciate. Those of us who are litigators see it play out in court day after day. Even lawyers who are never see courtrooms, think about and plan for their clients, based largely on judicial opinions. The ABA that stands up for the rule of law day in and day out.

So usually, I come away from an ABA House of Delegates meeting and report in these pages on the most significant resolutions adopted — or even rejected — by the House.

I could write the usual report from Monday’s meeting and tell you, for example, how pleased I am that the House endorsed UELMA, the Uniform Electronic Legal Materials Act. And I am pleased that it did so.

But the resolutions we adopted are not the dominant impression that will be left with me from our 2012 MidYear Meeting in New Orleans, Louisiana.

Instead, my recollections of the business of this meeting will be dominated by a report we merely received, one of a series of longer informational reports intended to give background to the House membership on matters not before it as action items, called “Issues of Concern to the Legal Profession.”

A perfectly nice, and as far as I could tell, well-intended lawyer named John F. O’Brien, delivered the report on behalf of the Section of Legal Education and Admissions to the Bar. O’Brien is the Dean of the New England College of Law, in Boston.

Dean O’Brien explained that the Section on Legal Education and Admissions to the has a unique role to play. It is the entity designated by the United States Department of Education to accredit United States law schools. As O’Brien put it — and he is right about it — ABA accreditation is the gold standard for law schools. in most states ABA accreditation is the prerequisite that determines whether a law school’s graduates can take the bar examination. The bar examination, in turn, is the gateway to entry into the legal profession.

All that means that when it comes to law schools, the Section of Legal Education and Admissions to the Bar is extraordinarily influential. Fundamentally, what the Section requires, the law schools must do.

With all that that authority comes controversy. As the Dean mentioned, in 1990s the United States Justice Department brought antitrust claims against the ABA because of it. The matter was settled based on a consent order that reduced the “guild” nature of the accreditation process, by taking faculty salaries out of the accreditation picture, and precluding consideration of a law school’s status as a for-profit or not-for-profit corporation in considering accreditation.

When I realized that this meeting’s “Issues of Concern to the Legal Profession” was from the Section of Legal Education and Admissions to the Bar, I hoped that the Section would announce that it had come to a bend in the river, and that it would use its substantial power to require a new, more practical direction in American legal education.

I was disappointed. Dean O’Brien mentioned some of the events that I think as harbingers of major change in legal education. He explained that Villanova Law School recently had to correct data describing the qualifications of its entering class. He acknowledged that more than a dozen law schools have been sued based on allegations that they falsified placement data about graduates. And he mentioned (but not by name) litigation recently filed by Dunkin Law School in Tennessee against the American Bar Association, challenging the ABA’s denial of accreditation.

But he did not say that a new day in legal education is dawning. In fact, his report sounded more like business as usual.

For as much good as the ABA has done, its often not been at the forefront of needed change. This is one instance when its leadership should look hard at what role the Association wants to play: defender of a tired status quo, or standard bearer for a better future.

New Orleans, is, of course, an exciting and interesting city. A record 4,526 registered participants attended the MidYear. I hope at least a few of them left as disappointed as I did with our Section of Legal Education and Admissions to the Bar.

Rich

At meetings of its Scope and Program and Executive Committees over the weekend in Charleston, South Carolina, the Uniform Laws Commission agreed to take on the difficult and critically important subject of the law of mortgage foreclosure. The Commission’s President, Michael Houghton, of Wilmington, Delaware, will appoint a drafting committee charged with developing a Uniform Residential Real Estate Mortgage Foreclosure Process and Protections Act. The new law would be intended to be new state law, operating to overlay existing state law on the subject, to address issues relating to the recent and ongoing mortgage foreclosure crisis.

More than 50 stakeholders, including representatives of banks, mortgage lenders, consumer groups, title insurers, the Federal Reserve System, and the Federal Housing Finance Agency, met with the ULC Mortgage Foreclosure Study Committee on January 13, 2012, to discuss the need and prospects of a new Uniform or Model law on the subject. Although there was by no means a unanimous view, the Study Committee felt the prospects for a successful statute were strong enough to justify a drafting effort.

Friday’s Scope and Program Committee session was my first in-person meeting as the Committee’s new Chair. The Committee took a serious look at the challenge any drafting committee will face: balancing the needs of mortgage lender for clear and expeditious foreclosure process, with that of borrows for a process that provides adequate consumer protections.

Without accepting the illusion that a drafting effort will necessarily succeed, our Scope Committee strongly recommended that Executive Committee authorize the project. On Saturday, and without a dissenting vote, the Executive Committee agreed to do so,.

President Houghton will shortly appoint the members of the Drafting Committee, together with stakeholder advisors and observers to the process. Uniform Law Commission drafting meetings are open to public and are announced in advance on the ULC web site at: http://www.nccusl.org/

Rich