11 November 2009

A Round Tuit (8)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

The State of Connecticut has commenced disciplinary proceedings against five attorneys who participated in a "cooperative marketing" scheme with a private company operating a client referrals website. Ethics rules in Connecticut, as in other states, forbids attorneys from sharing fees with non-lawyers and restricts advertising by lawyers. The arrangement in question in the "Connecticut Five" matter described itself as "cooperative" but did not vary its fees as the number of participating attorneys changed and had other characteristics of a non-cooperative marketing arrangement. The complaints which led to these disciplinary proceedings were filed, as Bob Ambrogi noted, by a Connecticut attorney who has filed similar complaints against hundreds of attorneys across the country. This matter was one of the more hotly-debated topics this week in the legal blogosphere.

Carolyn Elefant was the most vocal defender of the accused attorneys. She was highly critical of the Connecticut Bar which has been slow to react to the changes in the marketplace — particularly the rise of internet-based marketing and consumers' growing reliance on "per click" advertising. She was particularly critical of the disciplinary authorities' emphasis on the money involved in the supposedly-unethical marketing scheme — it makes no bones about the fact that it's a pricey for-profit service — and failure to account for the similar function of "per click" advertising, for other state bars' acceptance of similar marketing arrangements, and for the close association of this particular service with the American Bar Association (and the inherent legitimacy such an association communicates):
At the end of the day, Disciplinary Counsel is seething that profit-seeking third parties are providing a service that the Bars should have provided years ago but failed to do so. (Order at 14). The Internet has played a central role in lawyer marketing efforts for at least a dozen years now. The Connecticut Bar could have allowed lawyers to list websites online, could have sponsored educational websites with attorney ads, could have undertaken many activities to provide educational resources to consumers and to publicize lawyers' activities. Instead, the Connecticut Bar did nothing; it sat back and opened the doors to third parties to come in and capitalize on the void. The bars reacted similarly two years ago when Avvo launched its services. Yet now that someone is providing a service at a profit, the bars are up in arms, trying to protect turf that they willingly abandoned long ago.


Of course, for the more scholarly inclined, there are also Commerce Clause issues here as well. One of the attorneys involved is licensed in Massachusetts and maintains an office there. If Massachusetts doesn't bar him from participating in TotalBankruptcy, how can Connecticut do so without threatening his livelihood? Moreover, bear in mind that bankruptcy is a federal practice and one needn't necessarily be licensed in a particular state to practice in the bankruptcy court there, thus making the intrusion on commerce even more invasive.

Finally, there are also some serious fairness considerations here. These lawyers did not know, nor did they have reason to know that this system was unethical. TotalBankruptcy's legal opinions showed that it was. Other state bars (such as Hawaii) have since accepted the practice. Google Ads, a similar service (which even Disciplinary Counsel concedes differs in degree, not design) has never been challenged. If the bar wants to prohibit TotalBankruptcy as unethical so be it, as long as it does so prospectively. But don't penalize well intentioned lawyers for this uncertainty. But it's clear that Disciplinary Counsel has no interest in playing fair. It even references new legislation effective as of October 1, 2009 that criminalizes certain forms of solicitation. Obviously, a new law isn't going to apply to past acts. So why mention it at all, except to fan the flames.


Where the heck is the ABA in all of this? If the ABA is taking money from a company that has put five attorneys' reputations and licenses on the line, why isn't it defending them in this matter? The ABA has enough pull to sway judicial nominations and managed to even get Congress to propose legislation to exempt small legal practices from the FTC's Red Flag Rules. So why isn't the ABA weighing in here?

Whether you like TotalBankruptcy or TotalAttorneys or believe that their service offers value isn't the point. TotalBankruptcy is totally out of the Connecticut Discipline Process at this point. At the end of the day, on November 12, 2009, five lawyers will have their licenses and their reputation on the line. And no one has bothered to speak for them.
Scott Greenfield was less sanguine about the effects for-profit services like the one implicated in Connecticut cause in the legal profession, but conceded that the State's targeting of the "Connecticut Five" seems misguided:
There is a war being fought right in front of us. On one side is a tidal wave of newly established lawyer marketing businesses, deluging us with the promise of clients, money and success. On the other is the stodgy old world of hard work, competence and dignity.


This battle has nothing to do with the five lawyers in Connecticut who have been placed in the town square to be used as examples of what will happen to you by succumbing to the lure of the marketers. This is a huge battle, taking place everywhere and clouding the eyes of otherwise good, but hungry, lawyers who have been blinded to the meaning of professionalism by the nagging pain in their bellies.

I cannot agree with Carolyn's assessment that businesses like Total Attorneys are benign. They are a cancer in the legal profession, and one that happily infects far too many lawyers who are desperate for business. But I do agree that the five lawyers in Connecticut shouldn't be flogged as the scapegoats for this much bigger problem. We must deal with the disease, not the symptom. Free the Connecticut 5! Total Attorneys is another story.
Mark Bennett disagreed that the Connecticut lawyers' use of this pay-per-referral service was either novel or blameless and suggested that disciplinary action against them was appropriate:
A lawyer can’t pay a nonlawyer for a referral. This is an uncontroversial proposition. In Connecticut, paying a nonlawyer for a referral can even be a felony.


[Elefant] analogizes TotalBankruptcy to Google’s pay-per-click. She quotes a small part of the Disciplinary Counsel’s rationale for distinguishing Total Bankruptcy from pay-per-click, but leaves out the meat of it as well as a crucial word in a key sentence, so that it appears in her post that the Disciplinary Counsel is just haggling over the price. This is far from the truth.

Carolyn’s indignation is misplaced. If the bar is correct that Total Bankruptcy is in fact an unauthorized referral system in violation of the rules, then this should come as no surprise to the lawyers disciplined: they were, after all, paying to have cases steered toward them, and only toward them....

We don’t get a free bite at the apple every time the next shiny place to advertise comes around just because it’s not explicitly forbidden; it’s our responsibility as lawyers to know whether their advertising passes muster or not, and to avoid advertising that might violate the rules. Being dazzled by “Web 2.0″ bullshit is not, and should not be, a defense to a claim of unethical conduct by a lawyer.
Josh King was dismissive not only of Connecticut's actions but of marketing rules promulgated and enforced by other states' bars as well. King argues that such rules are generally, if not entirely, unconstitutional: "Ultimately, in the absence of consumer harm – and, indeed, a crystal-clear fit within the law’s prohibitions – states should never find that lawyer marketing practices violate their rules." He further suggests that these bars' instincts to maintain tight control over lawyer advertising is rooted in an archaic sense of "lawyer exceptionalism":
Anyone coming to the world of lawyer marketing from a consumer product background would be stunned by the state bar rules governing lawyer advertising. The vestigial remains of the courtly days before lawyer advertising, these rules are typically a mix of picayune detail and over-expansive reach, an attempt at lawyer exceptionalism in our 21st century media landscape.
Mark Bennett disagrees that the concept of lawyer exceptionalism is either outdated or misguided:
Am I engaged in “an attempt at lawyer exceptionalism”? Absolutely. 21st Century media landscape or no, lawyers are, and should be, exceptional. We have been given gifts—above-average intelligence, the opportunity to receive an advanced education—that the vast majority of people could never hope to receive. Further, society has given us a protected franchise: if an ordinary person tries to practice our art, he can go to prison. People entrust us daily with their lives, their fortunes, and their freedom.

Surely, in light of the exceptional advantages and responsibilities we’ve been given, it’s appropriate that higher rules be applied to lawyers than to those hawking Ginsu knives?


I am in favor of lawyer exceptionalism not because lawyers should be treated with special respect, but because lawyers should treat people with special respect. In our “21st-Century media landscape” lawyers need to be reminded that they are exceptional, that they have a sacred trust, and that lawyer advertising should be not merely undeceptive, but beyond reproach.

The message that “no blood, no foul” sends is the opposite of that needed reminder.
For my part, I'm hard-pressed to see much difference between the marketing scheme at issue in Connecticut and the outside marketing consulting which many attorneys use regularly. Does this matter turn on the nature of the fee arrangement? Instead of paying per referral, if the attorneys in a marketing scheme were to pay increased monthly or annual fees broadly-indexed to the number of referrals they received during the previous term, would that be acceptable? If that's the essence of the Connecticut matter, it seems like a slender thread to which to hang disciplinary charges, considering the tacit acceptance of similar marketing efforts in that state and elsewhere.

Frankly, in some ways this seems less seedy than the manipulative search engine optimization consulting or the bidding-up of keywords for per-click advertising (or for larger, glossier, more prominent yellow pages placement, for that matter), which have both been generally accepted. This service seems fairly straightforward; people want lawyers and this site has them to sell like widgets. It casts the profession into a poor light, turning legal services into a commodity without much concern for the clients involved, but that's not particularly different than the self-promotion done by many attorneys online and off.

I agree with Greenfield, that this issue is indicative of a larger problem, and with Bennett that the legal profession is exceptional and should be held to a higher standard. The Connecticut authorities may hope to arrest our slide down the slippery slope from lawyer to shyster, but this only makes it more apparent how far we've slipped already. All of this legal marketing on TV, online, on bathroom walls, beer glasses, and playing cards is sleazy; I'm a bit appalled that I'm now considering the subtle nuances of their relative sleaziness.

It was a big week at the Supreme Court, as arguments in Graham v. Florida and Sullivan v. Florida were heard. These cases concern the constitutionality of "life without parole" sentences where the defendants are juveniles (or were at the time they committed their offenses). Lyle Denniston provided an outstanding overview of the issues in these cases:
Four years after ending the death penalty for any minor who commits murder, the Supreme Court now is ready to analyze the next most severe penalty for a juvenile: life in prison without any chance of release, for a crime in which the victim is not killed. The issue will be examined in cases involving teenagers who were 13 and 17 at the time of their crimes — the 13-year-old convicted of sexual battery, the other youth convicted at age 17 of probation violation following a felony robbery when he was 16. Once again, the Court is inquiring into the degree of moral responsibility of minors, as well as into current moral standards, as factors in punishing youthful offenders.


The critical issue for the Court, having already decided that there are constitutional differences between juvenile and adult criminals, is whether that difference counts the same – or less – when the punishment a youth faces is not execution. It is not likely to abandon altogether its reliance just four years ago upon research data supporting those differences. But it must now reexamine that data as it considers whether life with no chance of parole can really be distinguished from death, and, perhaps a more difficult inquiry, does the distinction between the two vary with the age of the offender?

If the meaning of the Eighth Amendment is the underlying constitutional question, the closely related moral question for the Justices is whether a denial of any chance at rehabilitation – or future freedom – is close to being the loss of “life,” at least in some dimensions of what “life” means. As judges, the Court’s members will want to be comfortable defining the consequences of that denial in constitutional terms, but they will feel the tug of the moral question as they do so.
Scott Greenfield explains that the Constitution doesn't provide clear guidance for courts or legislatures who seek to draw lines between acceptable sentences for juveniles and unacceptable ones; nonetheless, he suggests that the Supreme Court needs to seize this opportunity to intervene in states' escalating and, he contends, irrational sentencing for juvenile offenders:
The problem is that our Constitution was never meant to decide such questions. When we get to the point of sentences short of death, the determination of propriety is purely normative, a personal vision of right and wrong. There's no hard rule to guide the Supreme Court. There's no test to measure it.


But [life without parole] for kids at all, no less for crimes short of murder, is just nuts. Absurd overkill is not something that any rational, reasonable legislature should ever enact. And yet they do, even though there's no empirical evidence to show that it makes any sense at all.

The problem is that states that have approved of the sentence of [life without parole] argue their emotional justification, the super-predator fallacy, the harm to victims, the crime wave, the need to stop these children.

If [life without parole] parole is constitutional, what will they do when they figure out that it doesn't change the way children think and behave? Can life plus cancer be far behind if this sentence? Can the Constitution serve as a substitute for sound, rational judgment? It wasn't meant to be, but when states can't manage to control the exercise of mindless fiat, the enactment of simple solutions, there's no choice. Somebody has to stop the madness, and the Supreme Court will be the last resort.
He doesn't sound hopeful about it. In another post, Greenfield notes, "What's missing from this discussion, and the argument before the Supreme Court, is an empirical understanding of children, or their development, of the changes they go through and their reasoning and comprehension processes. Without this, we're just making this stuff up. Making stuff up, however, has long been a tradition at the Supreme Court." Jeff Gamso puts things in perspective, writing that a sentence of life without parole and a sentence of death are not fundamentally different: "When a jury is deciding whether to sentence someone to death or to life without the possibility of parole (LWOP), all it's really deciding is how the person is to die. Either way, the sentence is death in prison. It's just that LWOP doesn't include a murder. And the expectation, if not always the reality, is that it takes longer." He continues:
These cases don't ask about actually releasing juveniles. They ask about possibility. Not should Sullivan or Graham be released someday but should they be allowed to seek release, and should there be a mechanism for granting it if it seems like a good idea at the time.

Put the legal and constitutional arguments aside, if you will. Ask the proper question: Why the hell would we want to impose [a sentence of life without parole] on anyone? I get that it's something other than death to help avoid executions. But on it's own terms it's cruel and pointless. And, by the way, it's likely that it makes prison administration harder.

Now we'll return to the Constitution. A punishment that makes no logical sense and has no ultimate rational purpose except cruelty for its own sake, should be prohibited as cruel and unusual and as government action without due process. There's really never a constitutional justification for [life without parole].

It's death in prison. Death penalty light.

The kids should win.

Alas, that's a goal, not a prediction.
Brian Tannebaum shares Gamso's pessimism about Sullivan's and Graham's chances because, he writes, severe sentences like life without parole for juvenile defendants "make sense":
Life without parole sentences for juveniles make sense because they keep politicians in office, and keep people believing they are safe(r).

Talk about putting money into education, helping kids on the "front end" rather than the "back end" when they are well on there way to prison, and you just "don't understand." The anger and hatred expressed by those who can't believe we as a country would even consider non-homicidal children in prison for the rest of their lives to be cruel and unusual, is deafening.

Prosecutors want this hammer. The people, are told by their elected officials that they want this hammer.

That's why it all makes sense.

And that's why they'll stay in effect, subject to some level of discretion that is virtually meaningless.
Mike Cernovich suggests that appeals to emotion and cries for sympathy for juvenile criminals without hope for redemption and release from prison are misplaced; his sympathies are squarely with the victims of criminals like Sullivan and Graham:
What's the point of sending people to prison at all? To me, it seems that you send people to prison for violating the social contract. As part of a member of organized society, I do not get to kill people who harm me. In exchange, the state removes the violent member of person from society.

What people should be removed from society? As Aristotle taught, the ability to reason is the sine qua non of a person. It's what separates us from the animals. Biologically, we are just pieces of meat - not much different from the animals we'll eat at dinner tonight. What separates humans is the ability to reason. What also separates us from animals is the ability to empathize, and to recognize the existence of other minds.

One who surrenders his reason has behaved as an animal - and should thus be treated as an animal.


Why do these "children" not deserve life in prison? Because ten years from now they'll realize, "It was wrong to rape and torture a woman before requiring her to perform oral sex on her own son"? Because they just made a mistake, and are deserving of a second chance? Really...Why should these teenagers be released?

Since teenagers do not have fully-developed brains, they should be excused some youthful indiscretions. Recognizing that teenagers are different should not excuse torture and gang rape. Deciding to rape and torture someone is not a cognitive error. It's not mere inability to control an impulse. It's an act of unmitigated evil.

The teenagers in the Dunbar Village Incident are privileged to remain alive. A just society would have put them down like the savage animals they are.
I agree with much of what Cernovich says. There aren't "magic" ages before which everyone thinks and acts as children and afterward as adults; we all know very mature young teens and very immature people well into their twenties. Society has a right to protect itself and an obligation to protect those of its members who do not prey on others.

Its citizens may determine that the best means to achieve that is to provide for extensive "front end" help for troubled kids and families, prison systems geared toward reforming and educating prisoners, and post-prison social services to improve the lives of former offenders, but they're not constitutionally obligated to go that route. Are increased prison sentences for youthful offenders successful in deterring crime by juveniles and increasing society's security on the whole? There's considerable evidence for and against, but that lack of clarity is no more an argument against harsh sentencing than it is support for it. Everyone can spin the numbers as they'd like to support their positions; with our votes, we get to make the decision and in Florida and elsewhere, we have.

Greenfield's right that the Constitution doesn't settle issues like this for us; perhaps that's because the Founding Fathers couldn't foresee a broken society like we see around us or perhaps it's because they realized that they didn't have all the answers. We need to figure things out for ourselves and right now, we're keen to remove "savage animals" from our midst rather than worry about domesticating them to play by the rules the rest of us do.

Perhaps that'll change. We may tire of the considerable expense of extensive, long-term imprisonment and look for a cheaper social service-focused approach; we may decide that such an approach is simply a better means to secure ourselves; we may discover a cure for criminality in handy pill form and Obamacare will make it available to all from cradle to grave; we may just give up, decide that society can't protect us any longer, and revert to a Wild West mentality whereby we're all responsible for protecting ourselves and our families. Who knows?

All we can agree on at this point is that there are dangerous folks within our society and a fair number of them are under 18 years of age. I think that our society's principal obligation is to us, not to them; reform them if you can, but don't do it at the expense of our safety. Society is for the benefit and protection of its civilized members, not the ones who demonstrate early and often that they have rejected society's most basic norms.

It wasn't a matter of life or death, but the Robes also considered the Bilski v. Kappos case, concerning so-called business method patents. Once again, Lyle Denniston offered the best overview of the issues and arguments in the case and outlined the stakes in this matter:
In 1981, the Supreme Court last decided a case spelling out the kinds of inventions that are eligible for patent rights under federal law. Now, in the wake of major changes in the world of commerce, the Court will try to provide a modernized definition of patent eligibility. Some experts say the outcome may affect the legality of more than 130,000 patents that already exist, and the legal fate of untold future inventions, especially in digital commerce.


The briefs put before the Court not only a dizzying array of ideas on that very point [determining what the word "useful" means in the patents context], but throw in a high degree of alarm about where the patent system as a whole may be heading in a world increasingly dominated by those most elemental of electronic expressions, ones and zeroes — the language of digital commerce and conversation. Although the Patent Office and many of its supporters suggest that the Court’s own record on patentability is a quite consistent pattern since 1790, and that it has already adapted to the “knowledge economy,” there clearly is much disagreement with that.

There is a deep chasm between those who think too much innovation is being locked into patent monopolies, and those who think too little is getting the protection of exclusive legal rights, and yet the Bilski case seems to ask the Court to reconcile the two.

Even if the Court were to see the case as being limited solely to “business method” inventions, that is a concept that now has so many variables, present and future, that defining it does not appear to be any easier than saying — in legal terms — what the word “useful” means in the Patent Act.
Brett Trout provided an excellent and concise background on the case and overview of the oral arguments. Jake Ward noted that it's "generally a futile effort to predict how the Supreme Court will rule on any given issue," but very helpfully culled some intriguing bits from oral arguments to permit us to speculate to our hearts' content. My favorite intellectual property reporter, Joe Mullin, gave us an excellent recap of the issues and arguments in Bilski, as well as adding a bit of color to an otherwise dry bit of Court business. He wrote that following their counsel's remarks post-arguments, inventors Bernard Bilski and Rand Warsaw spoke briefly with reporters:
[Warsaw] described the fixed-billing method offered by his company, WeatherWise. Warsaw was followed by an appearance by the elusive Bilski himself, who hasn't spoken publicly about his high-profile case before.

"I was completely awed and impressed by the whole process," Bilski said. "I couldn't tell you what the outcome will be. But not getting this patent made it very difficult to get this service out to many customers."

When reporters asked Bilski, who departed from WeatherWise in 2003, what his occupation is today, he responded, "At present I'm an employee of the federal government." In what capacity? "Not in the patent office," he said with a smile. And with that, he walked away.

Crime and punishment concerned the High Court in the Graham and Sullivan cases, but crime was also on Ilya Somin's mind this week. On the anniversary of the fall of the Berlin Wall, generally cited as a symbolic end of the Cold War, Somin argued why the crimes and atrocities committed by communist governments against their peoples should not be forgotten:
[T]here are several reasons why increasing recognition of communist crimes should be an important priority: providing justice for victims and perpetrators; alleviating the oppression of the unreformed communist governments that still exist today; and ensuring that comparable atrocities are never repeated.


The extensive attention paid to the Nazi crimes has helped sensitize people to the dangers of racism, anti-Semitism, and extreme nationalism. These evils have not disappeared. But at least the need to oppose them is widely accepted throughout the democratic world. A similar focus on communist crimes might increase recognition of the dangers created by ideologies based on class warfare and socialism (by which I mean full-blown state domination of the economy, not merely government regulation of private industry or a welfare state).

It is unlikely that communism will reappear in the exact form practiced by Lenin, Stalin, or Mao. However, the core ideas of socialism and class warfare are still advocated by various political movements and governments, especially in the Third World; for example, by rulers such as Hugo Chavez in Venezuela and Robert Mugabe in Zimbabwe, both of whom have cited the communists as models for their own policies. Sometimes, socialism and class conflict are coupled with extreme nationalism and oppression of minority groups, a combination pioneered by the Nazis. The debate over socialism is far from over. Moreover, future political and technological developments could make a resurgence of socialist totalitarianism more likely.
One person who's already forgotten those times — or at least the fall of the Berlin Wall itself — is Somin's co-blogger Kenneth Anderson, who confessed that he "wasn't paying attention when the wall came down":
I’m sorry I wasn’t and I don’t quite know what happened. I don’t say this to be flippant in the least. I knew that big things were happening, but unlike many others’ experiences, it all seemed very gradual to me and finally anti-climactic. It seemed like something that was gradually sliding into place that had been sliding into place for a long time but was also terribly fragile.

I credit that feeling to two things. One was that I was working in a Manhattan law firm, and completely buried in learning international tax. The other was that I had spent the previous several years putting in large amounts of time with Human Rights Watch, both its Americas division and its Helsinki division. I had done many missions in Yugoslavia, watching the Soviet empire fall apart while watching Yugoslavia fall apart very much upclose, at the village level, and watching it lead to war, affected how I saw the Soviet Union. I had a huge anxiety that war would break out in the Warsaw Pact; or that it would be a repeat of 1968 — especially a fear of a repeat of the end of Prague Spring, that fear more than anything — or something that I didn’t know, but bad, would happen.

I was also perhaps lulled into a sense of passivity that was somewhat Bush senior’s approach — looking backwards, it had important advantages by treating it as a matter of course — but for me, at least, it felt a little like events were unfolding, not so much as Frank Fukuyama would later say, but more as people like Adam Michnik and the Eastern Europeans intellectuals I knew said it would, if only the US and Western Europe would stay the course. In Yugoslavia, it was a very different sense; the intellectual elites of Yugoslavia understood very well that the end of the Cold War undercut the existential position of Yugoslavia and so it did. I had a sense of trepidation, not of liberation and freedom. The profound sense of liberation came later for me, when I finally believed that it was permanent and not a temporary blip.

The economics of the legal business was a popular topic for discussion this week, as it generally is. Bruce MacEwen discussed the economic and non-economic forces which underlie lateral partner movement amongst firms and whether these movements are worthwhile for the partners and firms involved:
If you stand back and look at the lateral partner migration phenomenon on a macro basis over the past two decades or so, what I think you see is a vast, and economically compelling, sorting-out. It's a sorting out of partners with high-margin, high-value practices migrating to firms where there are kindred souls and where the value of their practices can be maximized, and, on the other side of the coin (as it were), partners with low-margin, commoditizing, practices moving out of firms less willing to support those practice areas and into firms where they still feel welcome.


One managing partner recently told me that his firm's batting average was 1 in 3: One lateral in three succeeds. Another told me that they seem to have equal shares people who hit home runs and those who unceremoniously ground into double-plays--and that no matter how hard they analyze everything, they can't tell which will be which up front. They continue to be surprised both by who succeeds and who flames out.

Indeed, this mirrors my own experience.
Charon QC considered whether British law firms will be able to attract outside investment without changing the foundations of their business model:
Cutting to the chase – in the partnership model the profit goes to the partners, so there isn’t anything left for external investors. To attract external investors there will have to be an attractive return on capital invested. This means that the model will have to change. Partners will have to convert drawings to a much smaller salary and share, as shareholders, along with external investors. Have they the appetite for this? Of course, it is quite possible for law firms to come up with wonderful fudges by packaging off parts of their ‘business’ to external investors… but that, I shall leave for another time…and, who knows, possibly for that meeting at a lavishly appointed hotel with greedy lawyers?

The law firms will also have to build up a real brand, recognised not only in this country but worldwide. Law firms are not very good at marketing themselves to the wider market, it would seem. Rachel Rothwell, writing in the The Law Society Gazette states that ‘More than 60 of the public cannot name a single law firm’.

While the top City firms are obviously well known to their specialist clientele – and they are not all interested in the wider market – this lack of brand recognition of law firm providers of legal services does not augur well for the future.
One fundamental characteristic of law firm practice on both sides of the Atlantic has traditionally been the dominance of billable-hour billing. Jordan Furlong argues that clients will drive the profession away from this model toward one which offers less variability for them:
The fundamental client objection to lawyers’ fees is uncertainty: the client rarely knows the final price before the work is done. Neither, in most cases, does the lawyer — either because the price is truly unpredictable or, far more likely, because the lawyer has neither the means nor the incentives nor the inclination to figure it out beforehand. The fundamental variability of legal fees powers a business model that has proven enormously profitable for lawyers: because the fee varies according to the amount of time and effort devoted to the task, the lawyer has every incentive to maximize that time and effort. Uncertainty creates risk — 100% to the client — and reward — 100% to the lawyer.

The radical change facing law firms today is the end of variable fees as law firms’ financial engine and their replacement with non-variable fees — or, in the parlance of the day, fixed fees. Evidence continues to emerge not only that fixed fees are the immediate future of how lawyers’ services are sold, but also that they’re long-term future of how lawyers’ entire businesses operate.


Endless battalions of associates only make sense in a variable-fee system. When the amount of money you make is tied directly to the number of people working on a file and the amount of time they take to do it, you have every incentive to increase both. In a fixed-fee system, profitability flows in precisely the opposite direction: fewer people hired, fewer hours spent. Law firms that abandon variable-fee structures will shortly find themselves completely rethinking how many associates they hire, how much they pay them, and what tasks those associates are assigned. Under a fixed-fee system, a firm that genuinely wants to train its associates can afford to do so, not least because there’ll be fewer of them — the demand for associates will plummet, along with their cost.

As variable fees give way to fixed fees, we’re seeing a corresponding shift of burdens from the client to the lawyer: the risk of financial shortfall, the maintenance and analysis of relevant data, the obligation to control costs, the necessity of working smarter, the requirement to properly define productivity, and the responsibility to prioritize value. These changes are poised to transform lawyers’ incentives, processes, systems, and attitudes — for the better. Forget the billable hour: the future of law practice is tied to whether lawyers’ fees remain variable — or, put differently, to whether the client or the lawyer decides how much the client will pay. If I were you, I’d bet on the side that’s holding the money.
With so many weighty topics this week, we need a diversion or two, I think. If you find yourself in Iowa and craving patent-related dramatic entertainment, Brett Trout recommends a play:
The play The Farnsworth Invention begins tonight at the Des Moines Community Playhouse. Why would a patent blog write about a play? Well, unbeknownst to me before last night, The Farnsworth Invention is a play about patents. It explores patentability, infringement, enablement, interference, licensing and litigation. It even pastes parts of actual patents right into the script. You simply could not ask for any more patent and invention in a single play.
If prose is more your pleasure, Susanna Dokupil began a work of serial fiction at the Above The Law blog, entitled "My Job Is Murder: Of Confinement and Contracts":
Tyler got onto the elevator and pressed the button marked 13. As the doors closed behind him, he looked down at the golden manacles that signified his position as an associate. He must survive the tower another day, he thought. Only 657 more days until he paid off his student loans — that is, if he stuck to his budget. Until then, Tyler must serve out his apprenticeship as a squire to the knights of the realm, ensuring that the knights had the proper weapons for jousting with opposing counsel.

He reached his sparsely furnished cell in the law offices of MakoProphet, a D.C. appellate boutique, and turned on his +6 vorpal laptop. Tyler had a tendency to let his imagination wander. He scored high on Intelligence and Dexterity, but less so on Strength and Charisma. Tyler had spent — or rather misspent — the better portion of his youth immersed in fantasy fiction, various strategy games, SimWhatever, or some combination of the above. He tended to view the world in game terms. It helped him break down the complexities of real-life interactions into understandable bits to compensate for his obvious lack of social skills.

Finally, although I don't normally discuss politics here (extensively at least) or endorse candidates, I want to take this opportunity to jump on board the "Gideon for Governor" bandwagon. Gideon notes that current governor Rell will not stand for reelection and so he's thrown his hat into the ring (although he'd like it back at some point; public defenders don't earn enough to just throw away their hats willy-nilly, you know):
What needs to be done? The first response is obvious: abolish the death penalty. But there are so many more things that need to be changed about the criminal justice system in our State. In my mind, there’s only one candidate who is qualified to do that. So, you guys can be the first to hear it: I am hereby announcing my candidacy for the Governor of the State of Connecticut and I will be running on the Smart on Crime platform for the “It must be easy; she did it for so long” party.

More details about the, well, details of my platform will follow in subsequent posts. I’m now going to go and do a cartwheel.
While I don't live in Connecticut, I don't know his real name, we've never met, and he and I probably differ on every meaningful political issue you can think of (and many you can't), I'm happy to support Gideon's campaign. Gideon, if the people of Connecticut lack the wisdom to make you governor, I hope that you'll consider a move west to California; we'll elect anyone governor out here.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., ACME License Maker, Wikimedia Commons, and Paris Odds n Ends Thrift Store.

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