Via Paul Hsieh at Geek­press, “16 Things Your Lawyer Won’t Tell You”, a piece pur­port­ing to arm con­sumers of legal ser­vices the bet­ter to keep tabs on their lawyers, but which ulti­mately severely mis­rep­re­sents the pro­fes­sion. The over­all prob­lem with the arti­cle is that it assumes that it is immoral for a lawyer to make money off his clients’ legal woes. Here are the most mis­lead­ing points from the arti­cle, and my expla­na­tion of why they are misleading.

1. I use forms but charge you as if I did it from scratch.

Lawyers who cre­ate and sell oper­a­tive legal doc­u­ments (wills, con­tracts, trusts, &c.) do use forms. They are forms the lawyer has cre­ated him­self using many dif­fer­ent sources and his skill and knowl­edge of the law. The first time a lawyer cre­ates a doc­u­ment, he may spend hours on it, research­ing how to draft it prop­erly to meet the client’s needs. The next time, he will spend less time on it, because many of the par­tic­u­lars are the same for the sec­ond client as for the first. But some things will change, and a good lawyer will add those changes into his form, mak­ing the form bet­ter and more flex­i­ble. Even­tu­ally, the lawyer has a robust form that takes only a few min­utes to fill in and cre­ate a doc­u­ment of equal or bet­ter qual­ity than the first one he drafted. At this point, many lawyers will use a doc­u­ment assem­bly pro­gram like Hot­Docs (now a Lex­is­Nexis prod­uct) to com­plete forms dynam­i­cally and rapidly.

The lawyer cer­tainly spends less time cre­at­ing sub­se­quent ver­sions of the doc­u­ment than he did in first devel­op­ing the form. Yet he charges each client the same. Why? Because he is sell­ing a prod­uct, not his time. The arti­cle implies that a lawyer should bill based on how long some­thing took. But if lawyers did this, they’d never get that first client to swal­low a $5000 bill for a $250 doc­u­ment! The doc­u­ment is worth exactly the same to the client whether the lawyer spent 20 hours or 20 min­utes draft­ing it. Because the doc­u­ment is worth $250 to the client, there is absolutely noth­ing wrong with this prac­tice. The arti­cle, on the other hand, implies that lawyers should not take the value of the ser­vice or prod­uct to the client into account when set­ting prices, some­thing that is a per­fectly accept­able prac­tice in any other busi­ness trans­ac­tion, with the pos­si­ble excep­tion of doctor-​​patient trans­ac­tions (but that’s a topic for another day.)

2. I hand off work to peons but charge you a lawyer’s rate.

This one is mis­lead­ing on two counts, one minor and one major. The minor one is that a lawyer would never refer to his staff as “peons”. The major one is that it fails to define what work lawyers del­e­gate to non-​​lawyer office staff. Typ­ing. Fil­ing. File retrieval. Data entry. Mail­ing. Proof­read­ing. Some­times para­le­gals will pull, read, and ana­lyze case law or statutes or do other basic legal research, which is then sub­mit­ted to the lawyer, who then uses his skill and knowl­edge to apply the law to the client’s sit­u­a­tion and advise the client accord­ingly. Con­trary to the article’s sug­ges­tion, lawyers do not bill clients a lawyer’s fee for work not done by the lawyer. The lawyer charges a fee for a ser­vice, and over­sees the non-​​lawyers assist­ing him in pro­vid­ing that ser­vice, review­ing and (most impor­tantly) inte­grat­ing their work into the whole ser­vice pack­age. Again, the piece wants lawyers to bill only on the basis of how much phys­i­cal labor they per­form, with­out account­ing for added value to the client gen­er­ated by the lawyer’s other skills. The piece sug­gests that lawyers should be required to do all their own typ­ing. (Inter­est­ingly, doc­tors are forced by law to do a lot of sec­re­tar­ial work them­selves, such as fill­ing out billing sheets, wast­ing a lot of time that could bet­ter be spent with patients.)

8. I don’t know much about the law.

This is the only point the arti­cle admits, albeit only implic­itly, is mis­lead­ing. The arti­cle is talk­ing about spe­cial­iza­tion. No lawyer prac­tices equally in every area of the law. Every lawyer knows more about some areas of the law than oth­ers. This does not mean that every lawyer “[doesn’t] know much about the law.” Know­ing about law isn’t just know­ing about statutes and case law in a par­tic­u­lar area, but also know­ing how they fit in with the legal sys­tem, how they impact soci­ety, and how all of it is evolv­ing. Few lawyers can rat­tle off case names and statutes with­out look­ing them up, because there is no need to mem­o­rize such things in most areas. The law changes con­stantly, and even spe­cial­ists must expend a great deal of men­tal energy to keep up with the lat­est devel­op­ments in their fields. (Last I checked, a car­di­ol­o­gist who has to refer clients to an oncol­o­gist for can­cer treat­ment doesn’t get smeared with the claim that he doesn’t know much about medicine.)

9. I don’t refer you to the best lawyers.

True. I refer you to the spe­cial­ists most likely to be able to help you. “The best”, is as much as they exist, typ­i­cally charge huge fees, or have case­loads that won’t allow them to take on your case. I’m going to refer you to some­one who knows the area of law bet­ter than I do, and who I think or know will take your case. I’m not going to waste your time. All refer­ral fee arrange­ments require client autho­riza­tion, and most of the time clients are happy to agree to them.

10. Your bill is only a guesstimate.

Attor­neys bill clients in six-​​minute inter­vals. But don’t let this level of pre­ci­sion fool you—not all lawyers are fanat­i­cally star­ing at their stop­watches to ensure you are not get­ting overbilled.

The arti­cle takes two com­mon, but exclu­sive prac­tices and ignores their exclu­siv­ity. A lawyer who bills by six-​​minute incre­ments (usu­ally only the largest firms bill this way) are fanat­i­cal about record­ing times. Lawyers who bill in larger time incre­ments are able to be less fanat­i­cal. Lawyers who bill by the ser­vice, rather than by the hour (the vast major­ity of your solo and small-​​firm lawyers) don’t have to worry about time because they don’t bill by it. They charge a flat fee for a phone call or a doc­u­ment or a depo­si­tion, as the sit­u­a­tion allows. Your bill is no more a “guessti­mate” than a doctor’s bill is, or the bill of any other ser­vice provider. Your bill will be a rea­son­able one for the ser­vices provided.

11. I don’t have to tell you how I screwed up in the past.

Lawyers, like doc­tors, engi­neers and archi­tects, are often sub­ject to com­plaints from clients. Clients will file ethics charges with the state, and then the state will eval­u­ate them. As with com­plaints about doc­tors, engi­neers and archi­tects, the vast major­ity of com­plaints to state offi­cials about attor­neys do not go any­where because they are friv­o­lous. On the occa­sions where some­thing is amiss, the lawyer (like the doc­tor, engi­neer or archi­tect) will be dis­ci­plined by the state bar, and that dis­ci­pline will be a mat­ter of pub­lic record. And like doc­tors, engi­neers and archi­tects, lawyers are not required to announce every com­plaint or dis­ci­pli­nary action against them to every poten­tial client. The arti­cle is extremely mis­lead­ing in how this is worded, because it sug­gests that lawyers don’t have to tell you these things even if you ask, which is com­pletely false.

13. Medi­a­tion might be the bet­ter choice.

Actu­ally, it is far more often the case that the client will be the one try­ing to avoid alter­na­tive dis­pute res­o­lu­tion. Lit­i­ga­tion is expen­sive for the lawyer, too. Not just for the client. But clients are usu­ally the ones push­ing for their day in court when the choice is between ADR and lit­i­ga­tion. Your lawyer will advise lit­i­ga­tion in a sit­u­a­tion where both would be appro­pri­ate only if he hon­estly believes the ADR will not vin­di­cate your rights. This is most com­mon in arbi­tra­tion sit­u­a­tions, not medi­a­tion. Many courts across the coun­try now require the par­ties to attempt medi­a­tion prior to advanc­ing litigation.

15. I’m train­ing junior attor­neys on your dime.

This one suf­fers the same prob­lems as #2. Firms that charge by the hour do not bill senior attor­ney rates for junior attor­ney work. Firms that charge by the ser­vice are not charg­ing by the hour. They pro­duce a uni­form qual­ity prod­uct and charge uni­form prices accord­ingly, regard­less of how the work is generated.

So many lawyers are good peo­ple, but they get such an insanely bad rep­u­ta­tion. It can­not be sim­ply that peo­ple believe they are enti­tled to the ser­vices of lawyers (a belief per­pet­u­ated by bad law that actu­ally says they are) because peo­ple also believe they are enti­tled to the ser­vices of doc­tors, and doc­tors aren’t nearly so maligned as lawyers. Like doc­tors, lawyers help peo­ple every day, mak­ing their lives incal­cu­la­bly bet­ter. Like doc­tors, they ask for com­pen­sa­tion for this help — com­pen­sa­tion to which they are morally enti­tled — and yet, for this, they are hated. Don’t get me started on lawyer jokes. You already know how I feel about those.

Lawyers and doc­tors both save lives, though in dif­fer­ent ways. What do peo­ple expect? That young peo­ple should put them­selves through the hell of law school and the bar exam, incur in excess of $100,000 in stu­dent loan debt, work tire­lessly in a field that is con­stantly chang­ing and fre­quently extremely stress­ful, and receive noth­ing, or merely enough on which to sur­vive, in exchange? That’s cer­tainly what Con­gress intends to do to doc­tors. Clearly, this is the work of per­va­sive altru­ism. But here is some­thing I do not under­stand — Why has it attacked the pro­fes­sions so disproportionately?

Update: Com­ments closed due to their com­plete inap­pro­pri­ate­ness for pub­li­ca­tion. None will be posted.