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February 01, 2005

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Comments

Mackenzie

Perhaps along with over the top (Willie Gary?) another might be poor production. As strange as it sounds, I think our ad-savvy public has a more critical eye towards ads that have "dramatizations" of client injuries (with actors who are . . . inexpensive) and miscellaneous other production problems.

David

Being a young practicioner (5 years out of school), I do not really know how lawyers were thought of back 15, 25 years ago. That said, people need lawyers for awful reasons--divorces, criminal actions, injuries, being sued. Those people are in awful situations, and those other lawyers (but not mine!) are mistreating me and abusing me. When they think back, they remember those bad times combined with the lawyer.

Taco John

When in doubt, blame media. Every case where the big corporation or richer individual wins is a situation where the money bought the big powerful lawyer who crushed the normal person. But even when the little guy wins, he is praised for sticking up for himself in the face of the big corporation and it's expensive lawyers. The lawyer who won the case for him gets little or no credit.

USCA

I think the advertising fear is a little overblown. The ABA did a study awhile back that found that advertising did not really effect the public's opinion of lawyers. Also the statistics repeatedly show that the poorer, uneducated members of the public, those who would recieve their information from an advertisment like lawyers more than those pesky college graduates.

Evan

USCA: I'll admit I might be hypersensitive to lawyer advertising. As I've said before on this weblog, I do it myself, but I try to be tasteful about it. I've heard stories, though, that some advertising by plaintiffs' lawyers is really getting out of hand--recently, for example, some plaintiffs' lawyers from Texas were complaining to me about some of the outrageous ads they've been seeing lately.

Is there a link to the ABA study?

USCA

Here are a few cites to law review articles discussing the study.

15 Ga. St. U.L. Rev. 315
66 U. Cin. L. Rev. 805
29 Seton Hall L. Rev. 1405.

david giacalone

Evan, the ABA study is Public Perceptions of Lawyers. There are many reasons for the ancient dislike of lawyers, as I discussed in my post First thing . . . quell all the liars. This disrespect for lawyers existed long before lawyers did any advertising (as I asked my ethics professor back in 1975, "why do the public respect General Mills more than they respect the Attorney General?") Nor is the core of the problem the focus on the client (if only it were!). The distrust has much to do with the public's feeling that dollars almost always come first for lawyers, while they hide behind slogans about putting the client first, and ascribe special "dignity" and status to themselves merely for possessing their law licenses.

Of course, it does not help that we so often see our lawyers for unpleasant reasons.

Yeoman

There's no doubt a lot of reasons lawyers are despised. And likely all of the reasons mentioned here are part of it.

To start off with, as noted above, we are dealing in misfortune to start with. So, naturally, we're associated with the misfortunes we're handling. As part of that, note that it is often the case that people will despise lawyers, except their own. People do not associate their own legal efforts, usually, with any problem. It's everybody else, and the opponent in particular.

Beyond that, however, there has been a real erosion of law from a profession into a business, and that is widely known. Lawyers have a unique relationship to the law, and to the Courts, and therefore their use of them is everyone's business. In a former era, at least 30 or more years ago, this was taken much more seriously. Being an "officer of the court" meant that a person was supposed to adhere to certain standards, and most lawyers actually tended to. If a person looks at the behavior of lawyers 30 or more years ago, and I'd say probably 40 or more years ago, it seems there was much less of an expectation that a person would make any money at the law. A person was likely to make a decent living, but not get rich. And the duty to the Court was taken seriously. Ironically, I've seen an old ABA text, from the 30s or 40s, explaining how hard the ABA had worked to create that atmosphere, and rescue the law, in their view, form course monetary concerns corrupting it in the late 19th Century.

Starting with the Supreme Court's decision that lawyers could advertise, the standards really began to erode. Now the law is not really a profession, but merely a business. And a lot of people entering it are only influenced by that goal. So it has the appearance, form the outside, of a bunch of hyenas fighting over the carcass. And there's some validity to that view.

And we do no longer act, as a rule, much beyond our own pocket books. Given as we have a license from the government, live off of the misfortunes of others, and seem only interested in money, it is no wonder we are disliked.

Nic

Greedy lawyers that overcharge and over service may see their exorbitant fees threatened by an inquiry conducted by a new Australian government watchdog, according to an article in Lawyers Weekly last year.

NSW premier Bob Carr said the review had been established following more than 2760 written complaints about lawyers received by the Office of the Legal Services Commissioner (OLSC) last year. Of these, 20.3 per cent related to overcharging.

The majority of complaints related to allegations of negligence, which comprised 20.5 per cent, followed by poor communication, accounting for 15.8 per cent.

“Everyone has an anecdote about a lawyer handing them an outrageous bill, after a relatively small matter,” Carr said.

Recent examples of complaints to the OLSC included an elderly woman who received a card and phone call after the death of her husband from a family lawyer expressing sympathy. She later received a bill for both.

Damned itemized disbursements!

Tim

The president of the Colorado Bar Association recently published an article in the monthly bar journal in which he pointed out that (at least) the Colorado Rules of Professional Conduct do not impose a duty of "zealous" advocacy. The term "zealous" appears only in the Preamble to our rules; the actual rules themselves impose duties of "Diligence, competence, confidentially, with no conflicts of interest: elegant simplicity." Steve C. Briggs, The Myth and the Mischief of Zealous Advocacy, 34-January Colo. Law. 33 (2005) (which is unfortunately available online only to CBA members). Briggs tries to emphasize the full spectrum of a lawyer's duties and refute the trite argument in which overly aggressive lawyers justify their conduct by reference to a "duty of zealous advocacy."

I haven't gone back to read the ABA Model Rules to see if the language there is the same.

Yeoman

Interesting on the Colorado Bar President.

Our state bar presidents, for the last several, have tried to combat this problem basically by urging that the state's lawyers stamp out jokes about lawyers. It's ridiculous. They seem to seriously think that everytime we hear a lawyer joke were supposed to effect a stern demeanor, and explain to the jester how only lawyers keep America's rights intact, and that we're special.

That sort of wooly thinking is part of the reason people hate lawyers.

Rufus

I hate lawyers because I'm just generally filled with self loathing.

Rufus

I should add that this also why I hate Jews and pudgy balding men.

ctd

I have always felt lawyers are disliked because:

1. people see us acting for people or companies they dont like (criminals, multinationals etc) even though the public will generally not understand in any detailed way the issues in the case (ie someone says the multinational poisoned the lake, it must be true). So guilt by association

2. we earn (quite a lot) of money from #1. We are expensive in comparison to everyone else and what we do takes a lot of time.

3. in doing #1 we are seen to use improper tactics eg discovery or pleading insanity which - from the knowledge people have - appears improper.

4. many politicians are lawyers

In other words, its fairly easy to potray lawyers as people who just use underhanded tactics to assist people who dont deserve it. As others mentioned, that of course does not apply to your own lawyer.

Personally I don't think the whole 'we are now a business not a profession' makes much difference. What we do now attracts greater publicity than before. Lawyers are not put on the pedestal like they were when only white upper class men were lawyers, like daddy before them, and were above criticism by their 'inferiors'. Thus people have a greater awareness of what lawyers do and are simply more prepared to criticise, or even believe it is their right to criticize

Of course, its the unusual cases that get publicity. People never hear about the personal injury case in which the insurer settles early admitting liability or where each side agrees to dispense with uneccesary discovery or proceeds early to a successful mediation.

david giacalone

In June 2003, Arizona changed its legal ethics rules by substituting the term "act honorably" for "zealously" -- that is, it removed the obligation of an attorney to be a "zealous" advocate of his/her client and instead required that the lawyer "act honorably" in the furtherance of a client's interests [see press release of the AZ Supreme Court]. In this post, ethicalEsq discussed whether the change was likely to have any significant meaning. I was disappointed that the AZ Court put more emphasis on ending the bellicosity and incivility caused by the "zealousness" rule, than on the fact that "zeal" is an excuse for over-lawyering and thus increasing billing.

I continue to believe: (1) that lawyers are no more despised now (except perhaps by themselves) than they have been for centuries in every culture across the globe -- with or without ads, contingency fees, lawyer jokes and tv shows, etc; (2) If professionalism -- service to the best interests of the client and society -- were put ahead of profit by lawyers and law firms, there would be nothing inherently wrong with advertising, using billable hours, representing a client with zeal, acknowledging that law is also business, or any of the other alleged causes of the poor image of lawyers.

In our egalitarian-democratic society, lawyers can only make their image worse with phony assertions of "dignity." The role of lawyers is simply not that magical or awe-inspiring in a society where so many people have higher educations and can read and write.

Frankly, if the public saw all the wringing of hands over 1L grades that goes on at weblawgs -- due to their supposed importance to landing the "best" (highest paying) jobs -- their suspicions about why people get into the legal profession would be strongly reinforced.

If the public could come to believe that lawyers want first to use their knowledge to serve others (the core of what it means to be part of a learned profession), they would respect lawyers far more and would not resent our making a comfortable living. The desire of far too many lawyers to become rich (or super-rich) through lawyering is at the core of what is wrong with our profession and what ruins our image.

Evan

The desire of far too many lawyers to become rich (or super-rich) through lawyering is at the core of what is wrong with our profession and what ruins our image.

If that's true, why aren't entrepreneurs despised? Why aren't businessmen of all types despised? In fact, don't most people in the US (around the world) want to become rich or super-rich?

Perhaps the public expects lawyers to be lawyers without being businessmen. If lawyers want to act like businessmen and have normal businessmen desires, forget it. Everyone else can make a buck, but not lawyers.

There does seem to be that attitude lurking around. I think you tend to express it from time to time. I must say, as a lawyer who is also a businessman and who has no qualms about getting rich or super-rich: I don't get it.

You also say, David, that it's merely the "desire" to get rich that makes lawyers despised. That suggests something else interesting. The mere desire to get rich shouldn't influence public opinion, because a "desire" is something personal that's usually not shared publicly. It would make more sense if you said that the fact that lawyers are rich that makes them despised. But you can't say that--most lawyers aren't rich.

Only a small percentage of lawyers are rich or super-rich. There is, however, a common misperception that most lawyers are rich, a misperception that's often fostered by certain groups for political purposes. There's a lot of that going on these days.

Anyway, I don't agree it's all about money, at least as you've described it. I think you're more on target when you write that "lawyers are no more despised now (except perhaps by themselves) than they have been for centuries in every culture across the globe." I've always thought that lawyers are perceived to hold the answers to certain mysteries about "the law," which the average guy think lawyers intentionally make more complicated than they need to be to insure their continuing monopoly over all things legal.

I don't agree with this reasoning, though. It would be impossible to simplify "the law" so that everyone could be their own lawyer in all cases, just as it would be impossible to simplify house-construction so that we could all build our own homes.

Mackenzie

I think a critical distinction between lawyers and entrepeneurs or other business people may be a perception that lawyers are somehow less deserving of their money. Almost like it's not earned, because the lawyer has just taken advantage of a particular bad situation to turn a buck. How this is logically worse than sweatshops and industrial waste, I don't know, but there it is.

Evan

[T]he lawyer has just taken advantage of a particular bad situation to turn a buck. How this is logically worse than sweatshops and industrial waste, I don't know.

Or a doctor, who also makes money from bad situations and doesn't get any grief about it . . .

Matt

I would say the present attack on lawyers by corporate America also does not help. It seems the vast majority of the public, when they think lawyer, thinks multibillion dollar settlements on frivolous cases.

They don't think - guy who prepares my will, woman who coordinated complex real estate transaction, person who did due diligence on stock offering, or even person who reviews contracts for Fortune 500 company.

Really, we've allowed ourselves to be defined by our critics. Well funded critics at that. Take a look at websites like pointoflaw.com, overlawyered, etc. They are well put together, putting out press releases daily, and generally working hard to discredit the profession, or at least make it so only their clients can avail themselves of it. And unless you really study them, you have no idea who is backing them.

Also, being the brunt of misguided attacks by physicians is also hurting us. We have doctors marching on state capitols telling the public we are filing frivolous lawsuits. But we have precious few stories of clients who we have helped getting out there. I realize the professional responsibility rules limit that to an extent, but when the American judicial system is under attack (activist judges, anyone) perhaps it's time to hit back a little and explain just how unique and how incredible the rule of law and the process of enforcement is in this world.

Evan

Matt: I agree with all of what you said. Lawyers are just terrible at defending themselves against attacks against them. It's one of the reasons I started this site, for good or bad. For people googling "tort reform," I hope they end up here, at least for a little while, along the way.

Matt

Evan,

I know, I stumbled across your site while reading some physicians - Rangel, DB, Dr. Charles - sites on malpractice issues. I've debated them extensively, and while I think some are starting to understand that the law may be a little more complex than the AMA lets on, many are deeply wedded to their positions.

But they are enjoyable to debate with. One even talked me into doing my own blog. Which, while certainly not a victory for the English language, is a nice way of venting privately.

Yeoman

Are we being attacked by Corporate America as Matt suggests? I don't really think we are. To the extent that we may be, we should keep in mind that our actions are not without impact upon lots of others, which may help explain that.

Lots of interesting comments above. Would I'd only add is this. We are unique as a profession as we make money off of others misfortunes in a way that inflicts pain on some, which makes us distinctly different from physiciains. It puts us more in league with wreckers of old, or with insurance adjusters of the present, whom either are or were disliked.

And also, there is a widespread feeling that we do not deserve the money we make. In part this is because the service is intangible, and often our victories are pyrric. If a person pays thousands of dollars to be cured of a disease, that's a tangible result. If they die, well that's nature. If a Plaintiff brings a suit, wins, but pays out huge costs and attorney's fees, .. . .well. ..

And also, the explosion in tort litigation has been noticed by nearly everyone. It is easy for lawyers to discount this, but it is real. Bogus suits are filed all the time, and everyone knows it. It's difficult to seek respect when the profession is an agent for seperating people from their money.

Matt

Yeoman,

Look at the funding behind tort reform efforts. See who runs and pays the salaries for those at Common Good and Overlawyered and such. Read the sources for most of these attacks. I think you'll find that it is primarily corporate America. Look at your tort reform proposals - no one ever talks about limiting what corporate defendants can pay their attorneys, only what individual plaintiffs can pay their own. Who benefits from that?

Ask yourself, how often do you hear about businesses filing frivolous lawsuits? Considering businesses, of which there are 7 million, file 4 times as many lawsuits as the 300 million people in this country, surely they are not all meritorious. Yet you rarely hear a peep about Allstate suing Kraft because the frosting on toaster pastries got too hot and allegedly started a fire that burned a house down. Do you really think if you filed suit against Kraft because your Pop-Tart was too hot and burned the house down that you wouldn't win a Stella award and have your name forwarded in every email that circulates about frivolous lawsuits?

You say there is an explosion in tort litigation, but the statistics I've seen indicate that tort filings have remained pretty constant. If I'm wrong though, let me know. I'd hate to be repeating false info.

Yeoman

Matt,

I don't doubt that the organizations you reference are funded by corporate interest, no doubt that is correct. In my own state tort reform efforts, which have failed, have been funded mostly by physicians and, by extension, their organizations and insurance carriers.

Conversely, in my state, opposition to tort reform, which has been successful, has mostly been funded by "Trial" lawyers, which equates with Plaintiffs lawyers. So, I suppose, a counter argument can be made that Corporate interest are under assault by Plaintiff's lawyers, if we take that logic too far.

I wouldn't suggest, however, we do that. And I agree your arguments have a lot of merit.

The problem, as I see it, is that while I'm opposed to tort reform of the type I see, I'm not entirely certain that those advancing some of it are completely in error. There's a lot of blame to go around.

On statistics on tort ligitgation, I cannot cite to any. However, in the courts I practice in there has been a dramatic rise over the years in the dockets, which is attributable in part to tort litigation. I wait two to three years in some instances for trial settings I used to be able to get in a year. Some of that is attributable simply to population increase, but the number of suits has outstripped that.

I can't say that the character of the suits I'm seeing is changing, however. They are largely the same. There's just a lot more of them. I'm not sure what a person could make of that. I wouldn't say that I see a lot of purely frivolous cases either, although there's always been some.

david giacalone

Evan, I'm sorry that the word "desire" got so much of your attention (you do tend to "over-lawyer" a discussion by parsing just one word or phrase to death, whenever the broader message is one you don't want to hear; my Comments can't be written with the precision of a brief or law review article, nor take account of every connotation a word has in your lexicon). I believe the context of the entire Comment, and the paragraph in question, makes my point rather clear: At the core of what is wrong with the profession is the goal/desire/priority of lawyers of putting profit first over providing service that is in the best interest of the client and society. The public -- especially ordinary people who have seen how Main Street lawyers operate -- see and feel that skewed set of priorities and dislike lawyers because of it.

The dislike is heightened by the fact that the profession constantly professes that it puts the client's interests first and operates at the highest level of ethics. Hypocrites tend to be despised. Entrepeneurs who make no bones about being in it for the money are at least not hypocrites.

And, you are correct, many lawyers are not rich. However, the less-than-successful ones who are not rich are often those who milk every client who walks in the door for every possible dollar (trying to get as rich as possible) -- avoiding alternatives to litigation, forcing extra court dates, using cookie-cutter interrogatories that waste everyone's time, etc. Their failure to become rich does not prove that they put professional service above profits.

I also agree with you that some types of law and some legal situations cannot be handled by the consumer. Lawyers with the skill and diligence needed to handle such matters deserve to make a very good living. However, much that is done by most lawyers takes no more skill than high school level reading and writing, with training on where to find simple answers that could be given in a matter of weeks. Literate consumers with good software could handle most everyday legal problems. The lawyers who instead provide those services should not be charging twenty times or more per hour to handle the matter than they are paying their secretaries.

And, we do disagree about getting super-rich practicing law. If a lawyer is getting super-rich off the "damages" suffered by his or her clients, the clients are not being adequately compensated -- not getting what is their due, but instead paying it over to their purported fiduciary and champion.

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