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.

Via FAIL Blog, this Orange County sign:

The references are to the Orange County Codified Ordinances. The ordinances read:

Sec. 2-5-49. – Diving/jumping.

No person shall dive or jump into any body of water in park, beach or any recreational area from any pier, bridge, rock or precipice other than at those places designated and posted for diving or jumping by the Director, as authorized by resolution of the Board of Supervisors. Violation of this section shall be an infraction.

Sec. 2-5-49.1. – Landing in water after having jumped or dived.

No person shall land in any body of water in any park, beach or recreational area after having jumped or dived from any pier, bridge, rock or precipice above such body of water, other than at those places designated and posted for diving and jumping by the Director, as authorized by resolution of the Board of Supervisors. Violation of this section shall be an infraction.

Despite the similar construction, I think the two statutes prohibit two different acts. I added bold to the ordinances to try to make some sense out of them. The first prohibits jumping from an undesignated pier, while the second prohibits jumping into an undesignated body of water from any pier, designated or not. For example, a pier may be designated as appropriate for diving, but only in the deep water off the end. It would not be an infraction to jump from the middle of the pier, but it would be an infraction to enter the water under the middle of the pier after having jumped therefrom, because that water was not also designated for jumping.

At least, that’s the only way the second ordinance makes any sense to me. These are still wrecks of legislation, and this is still a wreck of a sign. Orange County lawmakers need to get off their lazy asses and write laws that clearly indicate what is prohibited. Or better, sell the parks and public beaches to private entities and let those entities make the rules and signs.

Attorney Alan Gura, with whom I had the pleasure of dining just before he argued District of Columbia v. Heller to the United States Supreme Court, is now challenging Chicago’s handgun regulations. The Court granted certiorari last month. The case, McDonald v. Chicago, goes further than Heller did because the District of Columbia is a Federal jurisdiction. Heller didn’t address whether the Second Amendment also applied against state governments. McDonald will now try to answer that question.

Applying the protections of the Bill of Rights (which on their face apply only to the Federal government) to the states is a legal process called incorporation, because these protections are, one by one, deemed to have been “incorporated” into the 14th Amendment’s Due Process Clause. Due Process incorporation is a messy, convoluted business because it requires finding that a protection found in the Bill of Rights is essential to the concept of ordered liberty and deeply ingrained in our nation’s history and tradition, such that not restraining the states would deny citizens of a fair day in court. Due Process is a clunky way for the Federal government to go about protecting individual rights at the state level. A much better way would have been to use the 14th Amendment’s Privileges or Immunities Clause.

The Privileges or Immunities Clause is little-known by the general public. The public knows about Equal Protection and Due Process, but not Privileges or Immunities. It reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

It sounds like an amazingly powerful tool for the Federal government to use to keep state governments from violating individual rights protected by the U.S. Constitution. But it isn’t.

In 1865, Louisiana passed a law granting to the City of New Orleans to charter an exclusive slaughterhouse operator. The goal was to reduce slaughterhouse waste ending up in the Mississippi, and its effect was the confiscation of private slaughterhouses in and around the city and the creation of a politically powerful, government sponsored slaughterhouse monopoly. Independent butchers, now out of jobs by government fiat, sued under the new 14th Amendment, arguing that all three clauses (Privileges or Immunities, Equal Protection, and Due Process) independently prohibited the State of Louisiana from doing what it had done. The suits were addressed together by the Court and are today collectively referred to as the Slaughterhouse Cases, decided in 1873.

The Court upheld the monopoly. It ruled that Equal Protection did not protect the butchers because they were not being discriminated against on the basis of race, and that Due Process did not protect the butchers because they had not been excluded from the political process. (Substantive Due Process, the modern doctrine of incorporating substantive rights into the 14th Amendment, arose much later in response to the Slaughterhouse Cases.) And most depressingly, it ruled that Privileges or Immunities only protected rights peculiar to being a citizen of the United States (as against state citizenship). The clause has been effectively meaningless ever since. Substantive Due Process doctrine arose later as a way to shoehorn Federal Constitutional rights into the still-operative Due Process Clause. Had the Privileges or Immunities Clause remained viable, there would have been no need to individually examine each protection in the Bill of Rights to see whether the rights they protect are “essential to the concept of ordered liberty” and “deeply ingrained in our nation’s history and tradition” before requiring state governments to observe them. The Privileges or Immunities Clause should have done this automatically.

The protections of the Second (right to bear arms), Third (against quartering of soldiers), and Seventh Amendments (right to trial by jury in civil cases in excess of $20) have never been incorporated into the 14th Amendment’s Due Process Clause and therefore do not apply against the states. If the Privileges or Immunities Clause were viable, most scholars agree that it would include all the rights protected by the first eight Amendments.

Mr. Gura will be arguing in McDonald v. Chicago, inter alia, that the Court should reverse its ruling on the Privileges or Immunities Clause from the Slaughterhouse Cases.

Popehat has excellent commentary on the case and its possible implications.

While I dislike the rule from Slaughterhouse and would love to see it reversed, I do not think the current Court will like this argument very much. Substantive Due Process doctrine is too old and established to get tossed out by this Court. I will remain quietly hopeful, though, because I know that if anyone can convince the Court to make a change, Mr. Gura can.

According to Reuters, FCC commissioners voted 5-0 today to proceed with crafting a “net neutrality” rule, sending the current language (which would strip telecom companies of the right to control how they use their own property) to the printing office for public comment. Comments will be accepted until January 14th.

The Notice of Proposed Rulemaking is available online here [PDF].

You can upload your comments using ECFS here, using proceeding number 09-191. You can read others’ comments on ECFS here.

I’m writing comments to submit right now. I’ll post my comments here when I finish. I encourage everyone who loves the Internet and doesn’t want to see it become the Postal Service of the 21st Century to do the same.

Via Prawfsblawg, a story from Reuters India reports that a British official has asked California Governor Schwarzenegger to shut down a Website that she says encourages prostitution in the UK. Prostitution is legal in the UK. Quoth the official,

Surely it can’t be too difficult for “The Terminator” to terminate Punternet and that’s what I am demanding that he does.

Patently, Ms Harman is not acquainted with our First Amendment, which is precisely what prevents “The Terminator” from “terminating” such a Website. The Website’s owner responds with a brief lesson in free speech, then thanks Ms Harman for the beneficial effects of her ignorance:

In closing, I would like to thank you for the huge influx of traffic to my website which your actions have caused. I am sure that the ladies who are a part of the PunterNet community thank you as well, as they will no doubt benefit financially from the many new clients who might otherwise never have found them.