Physical Office Space

Well, it looks like my experiment with running a practice with no office space is drawing to an end. The problem became keeping up with client meetings. I found myself running all over middle Tennessee, from Starbucks to Starbucks, to meet clients. As things grew, I found myself spending more time in the car than I did actually working.

So, I decided to open an office. I spent some time last week looking at space in the town I want to practice in - Lebanon, Tennessee. I am happy to report that I have found what I was looking for. I am going to move into a second floor office suite on the town square. The offices used to be occupied by an established law firm that build a new building a little further out Main Street. It has pretty much everything I need and is reasonably priced.

I should start the setup process this week, with the idea of having it fully up and running by November 1, 2007.

~Tim

Bathroom Advertising

On a trip to Tennessee to see clients last week, I happened to stop at a gas station outside the small town of Lebanon, TN. While in the men's room, I noticed an 8 1/2 x 11 one page ad for a law firm over in Nashville. It brought a chuckle as I thought that was an interesting place to put an ad and wondered who their target demographic might be.

Then it became clear when I read the line under the attorney's pictures. It read:

"Don't let your starter wife run off with your dream home."

Isn't that repugnant? The whole concept of a "starter wife" is morally bankrupt, in my opinion. And, to top it off, in Tennessee marital property is normally divided 50/50, absent some finding of waste of marital assets or other financial wrongdoing on the part of one of the parties. So, the lawyers are generally promising something they can't deliver. You can keep the dream home, but you will have to even it out by giving up every other marital asset.

This is what has gone wrong with the profession. We (and mostly mean the big firms who can affort the slick advertising campaigns) have sold our professional souls in the pursuit of the dollar. Our advertising reeks of used car ads. We're not a respected profession anymore - because we don't act like one.

But what can we do? From the small lawyer perspective, not much. Small lawyers generally don't get placed on the committees that are making and interpreting the rules. That honor is given to the big guys, and it's the big guys who are doing this kind of advertising.

All the small guy can do is carve out his niche and practice law with all the honor, integrity and dignity that he can muster, and hope that the public can see the difference between us and what they see in the advertising.

~Tim

Selling a Cause of Action

The Sixth Circuit announced an interesting decision yesterday. The case is Parker v. Goodman, No. 06-5940. The opinion permits a bankruptcy trustee to sell a cause of action of a debtor in order to realize assets for the benefit of creditors. Here are the facts:

The Debtor filed bankruptcy then had a falling out with his bankruptcy attorney. The debtor sued the bankruptcy attorney for malpractice in Kentucky state court. The debtor's bankruptcy trustee sold the cause of action in the malpractice case to the bankruptcy attorney's malpractice carrier for $10,000.00. The debtor was then enjoined by the bankruptcy court from prosecuting the malpractice case.

Isn't that interesting? Despite Kentucky's strong public policy against selling causes of action, the Sixth Circuit says that it's ok for the bankruptcy trustee to sell the debtor's claim against the attorney because the cause of action is property of the estate and the bankruptcy code, which trumps Kentucky law, gives the trustee the right to sell property of the estate.

But what makes this particularly onerous is that the trustee sold the cause of action to the attorney/defendant's malpractice insurance carrier, arguably for a fraction of its value had the case gone to trial. The malpractice insurance was able to extinguish the claim without the debtor ever having his day in court or even having had a say in the settlement.

Admittedly, the Sixth Circuit gives us an out - the debtor could have contested the actual sale, instead of waiting to contest the injunction against proceeding in state court - but that's of little comfort since the Sixth Circuit basically says that the sale was ok, giving trustees who want to engage in these transactions a green light.

This is another decision that is going to wind up causing issues down the road as a public, already lacking in confidence in the legal profession, will have yet another way to claim that "the lawyers screwed me out of my case." The judges of the Sixth Circuit ought to reconsider their position on this one, after thinking through all of the ramifications.

~Tim

Specialization

Recently, I have had occasion to discuss specialization with attorneys from both Tennessee and Ohio. Readers and clients know that I am a general practice attorney. I am not in the least bit interested in specializing. I am, however, interested in people's opinion on the topic.

One lawyer thinks that, within 10 years, everyone will be a specialist and that attorneys who do not specialize, or who take cases outside their specialty, will be liable for malpractice. My response to that is to say that it won't come to that but, if it does, count me out.

Personally, I think that specialization is bad for the profession and doubly bad for clients. It's bad for the profession because it spells the end of the small town, country lawyer who represents all clients, big and small. The lawyer on the Atticus Finch model. In years past, this was the predominate type of lawyer and in years past, people respected lawyers much more. As firms (and fees) have increased in size, the public's attitude about our profession has changed for the worse. This isn't a coincidence. The big firm specialization model does not breed public confidence. It breeds the idea of law as a business, not a profession. It breeds advertising models in which lawyers appear to be no better than used car salesmen (one ad that I particularly detest shows a lawyer who morphs into a tiger and the same firm has the back of the phone book with an ad that says "As Seen on TV" - are we lawyers or do we sell the Popeil Pocket Fisherman?).

Specialization is also bad for the clients. What happens when a lawyer specializes? Well, his client pool shrinks to encompass only those who need that particular legal specialty. When his client pool shrinks, what does the lawyer do? Well, most likely he relocates to a larger population center where the bigger population means more clients for his particular specialty. Clients who live in smaller communities now must travel longer distances to find a lawyer. Their costs are increased and one reason for that is that the lawyers overhead has increased (it's more expensive in the city). Fewer clients can then find, or afford, legal services. This is a bad thing.

I also tend to think that the lawyers I know who have specialized are not happy people. One reason for that, in my opinion, is that they get bored. Every day is the same thing. One bankruptcy petition looks much like every other. One complaint for divorce or mortgage foreclosure is much the same as any other. People thrive on variety. And people who are constantly learning new things stay sharper than people who are not learning new things.

As a profession, we should resist this urge to specialize. We may make more money, but it's about more than that.

~Tim

Sixth Circuit and Twombly - New Decision

Today the CA6 came out with its first decision regarding pleadings since the Supreme Court's decision in Bell Atlantic v. Twombly. This provides those of us who practice in the Federal District Courts that make up the CA6 (Tennessee, Kentucky, Ohio and Michigan) with the first insight into how the CA6 believes pleadings are effected by Twombly.

The case is Lindsay v. Yates, N0. 06-4430, an appeal from a decision of the Northern District of Ohio. The District Court had dismissed the complaint for failure to plead facts sufficient to establish each element of a primar facie case of racial discrimination. Although the dismissal was pursuant to Federal Rule 12(c), the standard is the same as that for dismissal under 12(b)(6) and arguably Twombly applies. The CA6 had this to say about Twombly, and it's heightened pleading requirements:

Swierkiewicz was discussed extensively by the dissent in the Supreme Court’s recent decision in Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955 (2007). Twombly addressed requirements for pleading an antitrust claim under § 1 of the Sherman Act. The dissent argued that the Twombly majority had devised a “new pleading rule” that called into question the continued vitality of Swierkiewicz. 127 S. Ct. at 1974 (Stevens, J., dissenting). Because the Supreme Court majority distinguished Swierkiewicz and nowhere expressed an intent to overturn it, we have no basis for concluding that Swierkiewicz is no longer good law. Moreover, although this case does not present the question of if, or exactly how, Twombly has changed the pleading requirements of Federal Rule of Civil Procedure 8(a), we note that in Erickson v. Pardus, __ U.S. __, 127 S. Ct. 2197 (2007), decided after Twombly, the Supreme Court reaffirmed that Rule 8(a) “requires only a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. At 2200 (internal quotation marks omitted) (concluding that the petitioner had stated an Eighth Amendment claim where he alleged that prison officials had endangered his life by removing him from hepatitis C medication shortly after he began a year-long treatment regimen, that he was still in need of the treatment, and that prison officials continued to deny him treatment). In any event, for the reasons described infra, we conclude that the Lindsays have pleaded sufficient facts giving rise to a “reasonably founded hope that the discovery process will reveal relevant evidence” to support their claims. Twombly, 127 S. Ct. at 1967 (internal quotation marks omitted).

From this, it seems that the CA6 is willing to provide somewhat less scrutiny to complaints than many think is required by Twombly. They place reliance upon the Erickson case, decided after Twombly, in which the Supreme Court appeared to utilize the old pleading rules, thus the complaint in the instant case was upheld.

I imagine that this is just the first of many cases in which the CA6, and the other circuits, will struggle to define what the exact requirements actually are. Perhaps the Supreme Court will clarify in the upcoming term, or at the very least, the term after that.

~Tim

Virtual Office Space

Being very interested in the concept of virtual offices, since I am running one, I was interested to see an article in the August ABA Journal about yet another lawyer who forgoes the idea of a permanent office in favor of working from home and other handy locations. The lawyer who was the subject of the article started, as I do, working exclusively from home. However, she found some reluctance on the part of her business clients, or potential clients, to retain her once they saw her residential address.

I suppose a big part of our business still favors style over substance. However, there is a cure. A company called Regus has developed a series of "Virtual Offices." These offer you a physical location, usually downtown or in other business friendly locations. For a low price, around $200.00, you get a local phone number, someone to answer that phone, voice mail, mail forwarding and two days a month of time you can actually use the office. Need it more? There is a package that gives you five days a month. And it appears that you can, for additional fees, get time in meeting rooms, etc, on a first come, first served basis.

This would seem to be a perfect place to have to meet clients, conduct depositions and do other tasks that normally require a physical location. I am toying with the idea of getting into one of their buildings in the downtown Nashville area.

The article didn't mention whether anyone had looked at the ethics of these arrangements. At first blush, I think it's ok. It would probably be best if you disclose to the clients what the arrangement is. It might be considered deceitful if you hold out that "This is my office" leading people to believe that you are renting the (expensive) space on a full time basis. And some states have rules regarding lawyers sharing office space with non-lawyers, requiring special action to preserve client confidences, etc. Still, overall, I think it should be ok and that perhaps the various boards should look at the rules and revise them a bit to better fit the modern way of doing business.

I have not yet decided to go this route, but I am considering it. I get quite a few inquiries from Tennessee, but not a lot of conversions. There could be many reasons for this, but one might be not having an office to get the clients into for meetings and to discuss their legal matters. An office with Regus might help that along.

The ABA Article can be read at:

http://www.abajournal.com/magazine/virtual_offices_in_real_space/

~Tim

Ghost Lawyering, Part II

The August ABA Journal contains a thoughtful article on the concept of ghost lawyering, which was the subject a a post here a couple weeks ago. The article details the travails of a New Jersey lawyer who was sanctioned for assisting a pro se litigator by drafting pleadings.

Last May, the ABA issued an opinion that might be of help to attorneys who practice in Model Rule States. The opinion states that ghost lawyering is permissible under the ABA Model Rules, so long as local rules do not prohibit the practice.

The article goes on to discuss the concept of attorneys who draft documents that are filed by other attorneys. This is of particular interest to me, as the largest part of my practice consists of doing exactly that. The article quotes New York University law professor Stephen Gillers, an expert on legal ethics, as saying that lawyers who draft pleadings and briefs for other lawyers don't violate the ethics rules, since the filing attorney takes responsibility for the work. One would hope that Professor Gillers opinion would carry weight with any Board of Professional Responsibility that examines the issue.

Basically, it comes down to this - as lawyers we need to consult the rules of the jurisdiction to make sure that we're on the right side of the (blurry and sometimes shifting) line. My personal opinion is that there is nothing wrong with the practice. Certainly not with respect to my practice of authoring documents that other lawyers file, but also not with respect to the pro se litigants. It is our duty as lawyers to help those in need of legal services. Ghost lawyering for a pro se filer can, in some circumstances, enable someone to put their case before a court when otherwise they would not be able to. To my way of thinking, that is a good thing.

I am going to use a feature of the new blog hosting site I am using and put up an opinion poll on Ghost Lawyering to see what people think of it. You can read the ABA Journal article online at http://www.abajournal.com/magazine/scary_parts_of_ghostwriting/. The article contains a link to the New Jersey decision sanctioning the attorney who engaged in ghost lawyering for the pro se litigant, then vote in the poll on the left hand side of this page to make your opinion known.

~Tim