Really? One third of you want to quit?

Our last poll--If you could do it all over again, would you go to law school, knowing what you know now?--produced disheartening results. At first, I was sort of pleased that the majority voted in the positive (62%), especially knowing that people with an ax to grind or a gripe to share are more apt to contribute in an anonymous forum. But, then I stood back and thought, that is over one third of people who bothered to vote (37%); they would rather not be doing what they are doing now.

The unfortunate poll result begs the question: what would you rather be doing?

What would you tell someone you know who is considering law school?

For those of you who want additional thoughts concerning the same topic as our latest poll, "if I could do it all over again ..." Karen Sloan has written an article in the latest edition of the National Law Journal, "Going to law school? Proceed with caution" that is worth a read. You can find the full article here: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202436271998

The Recession still Looms for Lawyers

According to the majority of poll takers in our latest poll, the recession is not over--fifty percent of respondents have lost their job and remain unemployed. An additional 33% of respondents have somewhat recovered: they have found employment, but their new job is not as good as their last job.

Unfortunately, the poll demonstrates, to a certain extent (at least in the NY legal market), many people have not recovered from the recession. The Am Law Daily confirms that the law profession continues to be financially rattled in a recent article entitled "Legal Sector Loses 5,800 Jobs in October" see the link below for the entire article.

http://amlawdaily.typepad.com/amlawdaily/2009/11/legal-sector-loses-5800-jobs-in-october.html

No Red Flags Rule for Lawyers

On October 29, the U.S. District Court for the District of Columbia ruled that the FTC's Red Flags Rules cannot be enforced against lawyers, saying that the FTC's interpretation of the Fair and Accurate Credit Transactions Act overreaches and its application to lawyers is unreasonable.

NYCLA organized a CLE Program on November 5 which discussed the decision and its significance for the independance of the legal profession.

Red Flags Rule Update

A bill to exclude some lawyers from the Federal Trade Commission’s Red Flags Rule has passed the U.S. House of Representatives and awaits action in the Senate.

On October 20, the House of Representatives voted in favor of H.R. 3763 to exclude from the meaning of “creditor” any health care practice, accounting practice, or legal practice with 20 or fewer employees. The bill would also excludes any other business which the FTC determines: (1) knows all its customers or clients individually; (2) only performs services in or around the residences of its customers; or (3) has not experienced incidents of identity theft, and identity theft is rare for businesses of that type.

With only three days left before November 1 -- the date the FTC will begin enforcement -- whether or not your firm will be affected is still an open question.

Red Flags Rule reprise

In case you have forgotten about theFTC's Red Flags Rule (we haven't). In the summer, the FTC delayed enforcement of the rule until 11/1/09. Mark your calendars, the date is coming up...

NYCLA's Ethics Hotline

I a volunteered to staff NYCLA's Ethics Hotline in August. I was surprised to have received several calls during my volunteer tenure. Many lawyers have serious professional practice questions that need answers so I applaud the Ethics Committee for the hotline resource. The first step for everyone facing an ethical dilemma is to review the rules; they are accessible on the web and deal (at least broadly) with most issues that came up in my volunteer weeks.



I wish I could tell you more, but the hotline q&a and the committee discussions are confidential. So, if you want to learn more, you will just have to volunteer yourself.

Is the recession finally over? Some say Yes!

PricewaterhouseCoopers says the worst of the recession is over for law firms. Is it over for you too? Let us know by voting on our survey.

Read the complete article about the PricewaterhouseCoopers survey at: http://www.abajournal.com/news/survey_says_worst_of_recession_is_over_for_law_firms/

NYCLA's Mentoring Program

The overwhelming number of voters in the latest poll are interested in participating in NYCLA's pilot mentoring program. We at the Task Force on Professionalism are very excited about this program.

NYCLA’s Task Force on Professionalism conducted a study on ways legal proficiency and professionalism can be improved. Interviews and focus groups were held at large, mid-size and small firms. A key theme that emerged from the interviews and focus groups was the need for mentoring of young attorneys as the best way to increase professionalism among lawyers and increase their professional satisfaction. To that end, the Task Force and NYCLA’s CLE Institute has developed a Pilot Mentoring Program. To learn more about the program and apply, follow this link: http://www.nycla.org/index.cfm?section=CLE&page=NYCLA%20Pilot%20Mentoring%20Program

Changes in store for the legal profession--your predictions?

We know changes to the legal profession are coming: generated by dissatisfaction with the old practice model of billables and face time--lawyers want more personal time and time to raise families, and a realistic economy--companies have become more conscious of the costs of legal counsel. The topic gets interesting when you think about what form these changes will take: will it be a minor move to more flex-time, or an earth shattering overhaul (see http://taskforceonprofessionalism.blogspot.com/2009/05/id-like-reply-memo-in-size-8-please.html). A recent article in the ABA journal discussed one practitioner's characterization of proposed changes as "insipid" and hindered by pesky ethics rules. Read more at:
http://www.abajournal.com/news/most_law_firm_reform_ideas_are_insipid_and_inadequate_consultant_says/

Grab bag of a post

I won't go as far as to say that I lost all control and discipline (blame summer), but I can't deny a noticeable lag in posts. I hope to rectify that short-lived lapse with this mixed bag of a post and more regular follow-ups.

First, Congratulations Justice (as of tomorrow's swearing in) SOTOMAYOR.

Second, unsurprisingly, the overwhelming majority of voters in our Red Flags survey did not welcome the government regulation of their firms. For a fuller discussion of the issue follow this link: http://www.nycla.org/siteFiles/Publications/Publications1269_0.pdf

Third, (trend watch) as more and more firms trim or eliminate their summer classes, I am wondering if this represents a seismic change in law firm practice to a more intimate, a pre-1980s, type of firm, or is this a short-lived, belt-tightening regimen just waiting to revert back to the gut-busting excess of 2000 (oh, those lunches of summer '00).

Before you go, vote on the new survey; it's a premonition of sorts.

More on the Red Flags Rule

The Law Journal has recently picked up on this very important issue. See Daniel Wise's article "FTC Rule on Identity Theft Draws Strong Criticism From Bar Groups" from July 01, 2009. He writes "The New York State Bar Association Monday became the latest bar group to protest new Federal Trade Commission rules requiring lawyers to become involved in preventing identity theft . . . . The state bar's objections follow those submitted last week by the American Bar Association and the New York County Lawyers' Association.


The article also mentions our blog (thanks, Daniel): "The New York County Lawyers' has set up a platform on its Web site . . . where its more than 10,000 lawyers [as well as other members of the legal community] can vote on whether they support or oppose the FTC rule." So, step up and vote, we want to hear from more of our 10,000 NYCLA members and from other members of the legal community who happen to be surfing the site.

Should the FTC regulate your firm?

In order to combat identity theft, the Federal Trade Commission issued regulations requiring, inter alia, financial institutions and creditors to develop and implement "written identity theft programs," as part of the Fair and Accurate Credit Transactions Act of 2003. In April 2009, the FTC informed the American Bar Association that it intends to require lawyers and law firms to abide by the rules because lawyers and law firms fall into the category of creditors under the law.

The "written identity theft programs" must provide for the identification, detection, and response to patterns, practices or specific activities that could indicate identity theft. The programs must describe responses that a firm would undertake to mitigate or prevent identity theft, and require management by senior employees of the firm.

Compliance with the FTC rules would undoubtedly be burdensome in time and expense for the legal community. In addition, the FTC rules threatens the autonomy of the legal profession, which is the only service provider that remains self-regulated and nearly free from federal oversight. But perhaps compliance with the FTC rules is a fair price for firms to pay to ensure the safety of their client's identity (bearing in mind that there have been no reported instances of identity theft arising from providing legal services).

In less than two months the Federal Trade Commission's "Red Flags Rule" will go into effect, which may mean yet more regulation of your law firm. NYCLA wants to know your opinion as to whether or not to endorse the "Red Flags Rule" regulations and get your views on a course of action to address the issue.

Please leave your comment by clicking the "Comment" link below.

Good bye lunch expense account

Our last survey tried gauge how the economy is affecting one of the perks of large law firms--the summer associate lunch. It appears the belt-tightening continues at most big firms even though many (at least those with strong litigation practices) assert that their business is healthy. Well, not healthy enough to reinstate last year's summer lunch policy. Seventy-seven percent of our voters say that their firms imposed sever cut backs to their firms summer lunch policy. The rest of the voters were split between (1) new spending limits, or (2) no change at all.

We will have to see if this is an overall change in the culture of recruitment at big law or if it is merely a anomaly formed from caution and fear.

I'd Like a Reply Memo in a Size 8, Please

For those of you who dream of an idyllic world without billables think of private practice's extreme alternatives. Here is one example from the ABA: How Law Practice Will Become Like Off-the-Rack Suits. Read the complete article at:http://www.abajournal.com/news/how_law_practice_will_become_like_off-the-rack_suits/

The Fall of the Billable Hour Paradigm?

You have voted on the future of the billable hour: most of you want to do away with the billable hour by focussing on alternatives (62%); many of you continue believe in the utility of the billable hour and want the profession to stick with it (25%); and only a small minority despise the billable hour enough to want to "kill it" (12%).

Don't forget to vote on our new survey on the right side of the screen -- has your firm's summer lunch policy changed?

Mentoring Back on the Agenda

Rumor has it that the NYCLA Task Force on Professionalism is in the early stages of developing a mentoring program. The Task Force's efforts have identified a serious need for mentoring to advance professionalism and satisfaction among lawyers. We will keep you updated as we receive more information.

My Least Favorite Topic: Layoffs

Below are links to two compelling articles that discuss very different aspects of the effects of the waves of lay-offs that we have been experiencing in our industry.



The first discusses lawyers (mostly young lawyers) who are "adrift" and "lost." In "Laid-off Lawyer's Find Themselves Adrift" from the National Law Journal, Leigh Jones highlights young, high-achievers who lost self esteem, hope, and direction after being laid-off at: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202428827679. The article ends in optimism and I hope anyone affected by these lay-offs is able to pull up their socks and find something new and better. NYCLA and other local bar associations are making special efforts to assist people who are laid-off. Those are the first places I would look into; they provide great resources.



The second article, from the ABA Journal, entitled "Layoff ‘Herd Mentality’ Ignores Greater Savings of Pay Cuts, Prof Says" discusses how firms may have other options to stabilize their finances instead of lay-offs, but are not exploring those and instead are opting for what everyone else is doing. Hopefully, firms are not finding that lay-offs are easy fix of their balance because it has become an acceptable consequence of the recession. Read the complete article at:http://www.abajournal.com/news/layoff_herd_mentality_ignores_greater_savings_of_pay_cuts_prof_says/

Views on Outsourcing

Because I mentioned it in an earlier post, I wanted to include a link to the recent ABA ethics committee opinion that affirms that lawyers may ethically outsource legal work to lawyers and nonlawyers in the United States and abroad, so long as they remain ultimately responsible for rendering competent services within the bounds of professional conduct, at: http://www.abanet.org/cpr/08-451.pdf.

According to our last survey, the readers of this blog are not as open to outsourcing as is the ABA.

Cutting the Cost of Discovery with Off-Site Document Review

Our readers are not comfortable with the idea of off-site discovery, even though it is sanctioned by the ABA. An overwhelming majority of voters discourage the use of off-site reviewers -- 91%! This group voted against outsourcing for various reasons: most, 50% voted to "discourage it" because they did not trust the accuracy of off-shore reviewers; the other 41% voted to "discourage it" because they have confidentiality, document security concerns.

The remaining 9% of those surveyed said "encourage it" because it is a great way to save money on costly discovery.

I was surprised by the high number of people that voted against this (inevitable?) phenomenon. I am one of the believers that the practice of law is changing; we will have to wait and see if off-shore, off-site and other cost-efficient ways to alleviate discovery burdens (and beyond) become more prevalent in the days to come.

What's Your Plan B?

This article was published a while ago, but it is worth a read. If you haven't read it yet or have, but haven't given it much thought. Take a look at it again, it is still just the beginning of the year. Do you feel secure enough that you will make it to end of 2009 without a Plan B?



http://amlawdaily.typepad.com/amlawdaily/2009/01/welcome-to-the-future-time-for-plan-b-in-2009.html

In Search of Pride in our Profession

I would like to share a quote by Edmund Burke (political philosopher) that I recently read: "No other profession is more closely connected with actual life than the law. It concerns the highest of all temporal interests of man--property, reputation, the peace of families, the arbitrations and peace of nations, liberty, life even, and the very foundations of society."

When I fear I am turning into a monster of my profession, I am relieved to find inspiring words, like those from Mr. Burke, to remind me of why I worked hard to become a lawyer in the first place.

We Can't Get Enough Talk About Billables

Click on the link below to read what the ABA has to say about the hottest topic the profession--alternatives to billables. http://www.abanet.org/media/youraba/200812/article03.html

Relying on Advice from Ethics Hotlines

On an appeal form the imposition of sanctions against an attorney for frivolous and bad faith actions, the Court of Appeal of California, Third District in Wallis v. PHL Assoc., considered the applicability of an opinion the attorney received from the State Bar ethics hotline. The atorney argued that the call demonstrated her good faith. The court rejected the reliance because (1) the lawyer did not disuss with the person at the hotline her duties with repect to the protective order and (2) "self-serving evidence of what was said in a confidential conversation with a persson at the ethics hotline is unconvincing." In any case, the court said, the call to the hotline was "weak" evidence of good faith since the eicis hotline is a "confidenial reserch service" and "not a source of legal advice."

Bye Bye Billables, reprise

Even the New York Times weighs in on the dialogue concerning the death of billables in Billable Hours Giving Ground at Law Firms By Jonathan D. Glatner, which you can find here: http://www.nytimes.com/2009/01/30/business/30hours.html?emc=eta1

The Final Chapter - The Defintion

If you recall how this blog was started, we were trying to finesse the definition of professionalism that was formulated by the Task Force. That definition can be found if you scroll to the very, very bottom of this blog, that sort of mass of writing that looks as though it is being transcribed to Moses or is narrating part of a story at the beginning of a Star Wars movie. The final paragraph states:


"Although duties to their clients in particular matters are paramount, lawyers must throughout their careers remain conscious of and committed to the goal of improving the profession and the system of justice. This commitment includes taking personal and professional measures to increase the availability of legal services and abet even-handed and efficient application and administration of the legal system for all segments of society."


Beyond the duty to clients, we generally focus on our ethical responsibilities but not to the extent of improving the profession by increasing the availability of legal services. Do you agree with this responsibility as stated in the draft definition?

Sad Day -- Unprofessionalism Extreme

Very unfortunate story last month in the Law Journal by Vesselin Mitev entitled "Attorney Charged With Stealing Millions From Guardian Accounts"

You can view the article here:http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202427822798

Are we moving to a flat-fee system?

Our latest survey results correspond to the latest trends concerning the way we lawyers charge our clients. Forty-six percent of those surveyed bill clients in ways other than the billable hour. Other lawyers who charge some flat, contingent or success fees comprise another 5% of those surveyed. But hourly billables are not dead for our survey-takes. Thirty-four percent of those surveyed are still charging an hourly billable rate 100% of the time.