Ghostwriting by Lawyers Still OK --- Sort Of
A while back we posted on the ruling of a NJ federal magistrate judge who criticized an attorney for drafting documents for a pro se litigant that were submitted to the court under the litigant's signature. The magistrate found that this "ghostwriting" might violate ethical rules that require a lawyer to act with candor towards a court.
Now the issue has been clarified by a committe of the NJ Supreme Court. According to Law.com:
In a formal opinion meant to calm nerves, the Advisory Committee on Professional Ethics [of the NJ Supreme Court] says it's ethical, in limited circumstances, for a lawyer to draft pleadings and give other "unbundled" legal assistance to pro se parties without telling the court.
Opinion 713 says that ghostwriting is impermissible and the attorney's participation must be disclosed where it is intended to achieve a tactical advantage by asking the court to judge an attorney's work product under the lenient standard traditionally accorded to pro se litigants. Where, however, the attorney's participation in the background is merely intended to assist someone who could not otherwise afford an attorney, the attorney's participation need not be disclosed.
Left unresolved by the Committee: whether the ghostwriting practice violates Fed.R.Civ.P. 11, which requires attorneys to sign pleadings and stand behind their content.
Opinion 713 is short and to the point. It's worth the time of all NJ attorneys, especially those who litigate. It is noteworthy for its intelligent balancing of conflicting policy considerations, and it should help to settle the law on the ghostwriting issue in a sensible and realistic way.
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Hiring a Business Lawyer
The fallout from the mega-firms' increase of annual compensation for first year associates to as much as $160,000 (!) continues to raise the eyebrows of corporate in-house counsel. Rather than continue to pay high prices for inexperienced lawyers, corporations are taking steps to keep their legal costs in line. Some examples:
- Keeping more work in-house.
- Demanding flat fees rather than hourly billing.
- Using creative, risk-sharing billing arrangements.
- Seeking authoritative answers from more expensive but experienced lawyers rather than hours of research from neophytes.
Law.com has more here.
We've preached this gospel before, but it's worth repeating. Even businesses that do not have their own legal departments can learn from the big kids.
Take some time to research law firms, meet with several, and decide which you want to establish a relationship with. Chemistry between lawyer and client counts, more than most business owners realize.
Understand that traditional hourly billing, by its nature, can encourage inefficiency. Sometimes it makes economic sense, sometimes it doesn't. But hourly billing is deeply ingrained in American business culture. All sorts of professionals use it, from attorneys to accountants to architects to engineers, and more. We're used to it, and sometimes it's hard to have the courage to break out of the mold of business as usual. The next time that you need legal services, ask prospective attorneys about their willingness to work on an alternative fee arrangement. Think about ruling out the ones who won't discuss it.
Think hard about whether a big firm with hundreds of associates (and commensurate overhead) is really what you need. New Jersey has scores, perhaps hundreds, of top-quality small and mid-sized business law firms that are staffed by lawyers who have fled the big firms for a different kind of professional life. And often for a different way to do business. Finding them is worth your time.
Learn from the in-house lawyers whose job it is to get the most bang for their company's legal services buck.
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The Big Get Bigger
A few weeks ago we posted on the trend towards large corporate law firms expanding in size as a business strategy. From Law.com comes evidence that the same thing is happening with management side employment law boutique firms. Regionally-oriented firms are bulking up to compete on a national basis with Littler Mendelson, which seems to be the horse that the others are chasing.
The reason?
"for firms that wanted to remain labor and employment boutiques, 'all of us, at the same time, began to realize that in order to make the cut with the big purchases we were going to have to be in more places,' said Roger K. Quillen, chairman and managing partner of Fisher & Phillips.
There may be a cost saving to clients when dealing with the boutiques rather than the large general practice firms.
But, as the medium sized boutiques bulk up or merge to become national players, are all of their clients following them? Or is there an opportunity for smaller firms to fill a gap? That is a question that smaller firms and non-national clients should be asking themselves.
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Service Is Key for Clients When Hiring Law Firms
A few days ago I was talking to an adversary in an employment litigation. She's a partner with a large (700 lawyer) and very capable firm with offices in many states. I had read stories about her firm making more acquisitions of smaller practices and asked when her firm's expansion would stop. You could almost hear the shrug through the telephone. The answer: "the consultants keep telling us that bigger is better."
Now this firm is reflective of a larger trend. All across the country the big firms are expanding, often by buying up small and mid-size firms. In fact, the phenomenon has become international, with firms from different countries hooking up. But is bigger necessarily better, as the consultants tell my colleaugue's firm? Or, to pose the question from a client's perspective, is a bigger law firm necessarily a better choice for your business?
I can't prove this empirically, but my informal observations of the legal scene suggest that, as a rule, big businesses historically gravitate to comparably large law firms as their primary counsel. (And yes, I know that there are exceptions. In fact, that's the point. Read on.)
The Legal Intelligencer reports on a recent study by BTI Consulting Group that shows that "in 2006, 61.1 percent of corporate clients reported they had fired one of their primary law firms in the last 18 months -- up from 53.7 percent in 2005." The corporate clients reported using an average of two "primary" firms. Do the math and you quickly realize that a lot of firms lost major client relationships last year.
Actions speak louder than words, so what are the clients telling us?
Obviously, they are willing to make changes. Why?
To get better service is one answer. But "service" is not as simple as returning phone calls and getting work done on time.
"Clients want firms that are there to help solve problems and not just there to bill hours. It's about communicating and demonstrating value, understanding the business and using a business perspective," Shunk said, adding later, "Firms that recognize how they can do that can exceed and surpass a competitor law firm."
And therein lies the opportunity for small and medium-sized firms, which often are hungrier than their larger compeitors, can be more creative in proposing solutions, and have the flexibility to respond quickly to changing situations.
And let's be honest. It wasn't so long ago that a 100-lawyer firm that would be considered mid-sized today, was a behemoth in the legal world. Firms of that size frequently handled the most sophisticated kinds of work for the most sophisticated clients. Have the requirements of business really changed so much that a 100 lawyer firm can no longer meet most of the needs of big business clients? I suspect not. The world is more complicated now, but it's not that much more complicated.
I'm interested to hear what clients think about this. Please comment with your thoughts.
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Legal Counsel: Does Ghostwriting by Lawyers Violate Ethical Rules?
This morning Law.com reports on an interesting decision by a federal Magistrate Judge in New Jersey in an ERISA case. Here's the article. In brief, the court ruled that a lawyer who was helping a pro se litigant behind the scenes --- by "ghostwriting" documents that were submitted to the court --- may have violated ethical rules by doing so.
The court ordered the attorney to either enter a formal appearance for the litigant or to stop communicating with her about the case.
We offer this article without comment at this time since it seems clear that the court will be heard from again on this rather unique issue in the near future.
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Employment Lawyers: Some of the Best May Not Be the Best Known
A recent Law.com article took an interesting look at the question of who are California's best management side employment lawyers.
Ask anyone who's the best trial lawyer or the best IP litigator in California, and you'll probably hear the names of well-known, $700-per-hour senior rainmakers at California's largest law firms.But there are a great many superb lawyers practicing outside the headlines at smaller firms all over the state or in more junior positions at the megafirms. They may not have the same name recognition -- but they also don't usually come with the same price tag.
Thus began the quest to identify high quality but lesser known employment lawyers.
Law.com highlighted four; who they are is not important for purposes of this post. Why they are well regarded is. Here are some of the common threads.
First, their rates are usually lower --- sometimes much lower --- than those found in the larger firms.
Second, they are highly competent. Often they are alumni of the larger firms who have left to establish their own practices.
Third, they work with focus and efficiency. As one said, "One of the things that seems to resonate with my clients a lot, I do what needs to be done to win -- not everything that can be done."
Fourth, they offer clients real solutions to business problems, not theorizing or temporizing. In other words, they give specific, practical answers to managers who need them.
The article was limited to California, but it's reasonable to think that there are similar attorneys in the other 49 states as well. The question is how to find them.
More on that in another post soon.
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Super No Longer
The New Jersey Supreme Court's Committee on Lawyer Advertising has yanked the capes off of the backs of so-called "Super Lawyers." In Opinion 39, the Committee found that the Super Lawyer designation is just a self-congratulatory paid advertisement that unethically seeks to convey the impression that the "Super Lawyer" is more qualified than other lawyers who practice in the same area.
Although recently published, Opinion 39 already has drawn considerable attention, such as here and here.
The Committee based its decision, among other things, on the following.
Such titles or descriptions . . . lack both court approval and objective verification of the lawyer's ability. These self-aggrandizing titles have the potential to lead an unwary consumer to believe that the lawyers so described are, by virtue of this manufactured title, superior to their colleagues who practice in the same area of law.
When a potential client reads such advertising and considers hiring a "super" attorney, the superlative designation induces the client to feel that the results that can be achieved by this attorney are likely to surpass those that can be achieved by a mere "ordinary" attorney. This simplistic use of a media-generated sound bite title clearly has the capacity to materially mislead the public.
Do you question the Committee's premise? One look at the Super Lawyers website will convince you otherwise. There you will find a banner that touts their advertisers as "Seriously Outstanding - The Top 5%."
It seems not to be a coincidence that most (though not all) New Jersey "Super Lawyers" come from the state's larger firms. That, after all, is where most of the advertising dollars are.
We know that a lot of "super" (and cost-effective) legal work is being done by small firms that often are founded and staffed by refugees from the big firms. And that market their services responsibly by educating their prospective clients and demonstrating their expertise, rather than through the artifice of invented self-congratulatory titles.
While I often disagree with restrictions that the New Jersey courts have placed on attorney advertising, I have a one-word evaluation of the "Super Lawyer" prohibition: good.
The legal profession and the public are better off without Super Lawyers. Regular old lawyers have served us just fine through the years.