Don’t be That Attorney – If You Must Rant, At Least be Right

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I’m at the drive through teller at my bank yesterday, to cash a small check. I sign the back of the check and send it up the tube with my driver’s license and ATM card, a process I have followed dozens of times. But this teller is clueless. He asks if I have an account there, then asks for more identifying information, then he asks for the name of my business (even though the check is made out to me and has nothing to do with the business).

I remain calm, even when he comes back and says he cannot cash the check because they can’t find my account. I calmly ask, “You can’t get my account number from the ATM card?” He politely responds, “We can, but you only sent your license and a credit card.” I look down, and realize I had sent the wrong card. He had not been clueless at all, and was actually being quite accommodating trying to find my account information with what I had provided.

So what is the point of this quaint story? Imagine if when he had told me that he could not cash the check, that I had torn into him, calling him an incompetent idiot for being unable to look up my account information from my ATM card like every teller before him had been able to do? Then my diatribe would have all fallen back on me, and I would have been the idiot; a lesson I have learned from other times that I did not hold my tongue.

Realize that as an attorney, you can be wrong, no matter how convinced you are of your position, and that a rant seldom serves any purpose and can come back to bite you. Bringing us to today’s attorney not to emulate.

Tripod SprinklerAs reported by ABA Journal, Above the Law, CBS News, PatentlyO, and even a blog about whiskey, a patent attorney apparently had had enough of patent examiners denying his applications. I don’t do patent law, but in my never to be humble opinion his client’s “Telescoping Tripod Sprinkler Cart” was not eligible for a patent. Examiner Alexander Valvis agreed with me and rejected the application. The patent attorney responded by FILING the following rant:

REMARKS: Are you drunk? No, seriously … are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes.) Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or are … (I don’t want to say the “R” word) “Special.” Continue reading →

Should You be Suing for Civil Extortion?

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Extortion
A few days ago I reported on the case of Miguel Mendoza v. Reed K. Hamzeh, which found that an attorney’s demand letter amounted to extortion since it threatened criminal prosecution if money was not paid. The threatened party turned around and sued for civil extortion, and defeated the anti-SLAPP motion brought by the attorney who sent the letter.

Writing about that case got me thinking (contrary to the belief that no thinking goes into my writing). I have over the years seen a number of letters from attorneys threatening criminal prosecution. Should I have been advising the clients who received these demand letters to sue for civil extortion?

Thankfully my research was streamlined by a reader who graciously pointed me to Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426-428. That case, and others I found, held that a civil action for extortion does in fact exist, but that like most torts requires a showing of damages. More specifically in the case of civil extortion, the extortion money must have been paid in order for there to be damages. Thus, based on my limited research, in the case of a garden-variety demand letter from an attorney that steps over the line and threatens criminal prosecution, there would not be a viable action for civil extortion.

That does not necessarily get the attorney off the hook. Continue reading →

You’ve gotta fight, for your right . . . to wear wigs.

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Solicitors fight for right to wear wigsFollowing the British tradition, Hong Kong’s lawyers are divided between solicitors, who work directly with clients, and barristers, who represent those clients in court and wear wigs and robes while doing so. The former are typically considered to be of a lower stature, but solicitors have long been expanding their professional reach into areas traditionally considered barristers’ turf, including courtroom work.

And they want the wigs to prove it, The Wall Street Journal explains in a front-page story Tuesday. You might think in modern Hong Kong the desire would be to do away with the tradition of wigs and robes, but the solicitors actually sued for the right to don that attire. The WSJ video can be found here.

Think Before You Demand — Miguel Mendoza v. Reed K. Hamzeh

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If the threat of getting in trouble with the State Bar is not enough, maybe the threat of both civil and criminal actions will get attorneys to toe the line.

You know that it is an ethical violation for an attorney to threaten criminal action as a means to extract a civil settlement. For example, California’s Rules of Professional Conduct state that “a member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” (Rule 5-100.)

Then there are the criminal extortion laws:

Extortion is the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear. . . .‟ (Pen. Code, § 518.) Fear, for purposes of extortion ‘may be induced by a threat, either: [¶] . . . [¶] 2. To accuse the individual threatened . . . of any crime; or, [¶] 3. To expose, or impute to him . . . any deformity, disgrace or crime[.]’ (Pen. Code, § 519.) ‘Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.’ (Pen. Code, § 523.)

Despite these prohibitions, some attorneys can’t resist throwing a threat of criminal action into their demand letters. They apparently think (if they give it any thought at all) that an express or veiled threat of criminal action will be protected under the litigation privilege, but that is not the case. If you include a demand for money in a letter that threatens to pursue criminal action, you have committed extortion, and as Flatley v. Mauro held, that is not protected speech because criminal acts are not protected.

The most recent example of this was discussed in the just published decision of Miguel Mendoza v. Reed K. Hamzeh. Continue reading →

Something to Consider When Advising Your Clients About Litigation or Appeal

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Are you presenting a meritless defense?
Too many attorneys defend cases that have no defense.

Over the years I have been sorely disappointed to learn that many attorneys don’t see a problem with that, and have no clue that it is not permitted. In California, for example, the Rules of Professional Conduct prohibit accepting employment by a client if the objective of such employment is “to present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.” Some cases are not black and white, and that is why ours is an advocacy system, but some are entirely clear and not open to debate. If someone borrows money and does not pay it back pursuant to the terms of the agreement, so long as there is no issue of contract interpretation or other issue, there is no defense. A defendant in that case should not be able to find any attorney to represent him.

But let’s set aside the ethical considerations for a moment, and look at this from a different angle. I would hope that any attorney, whatever the motivation for taking the case, would want to do a good job for the client. Always consider whether a defense could actually put the defendant in a worse position, and advise the client of that possibility. Here are two cases from my practice that illustrate what I am talking about.

The case of the defaming doctor.

In the first case, we brought an action against a doctor who had defamed our client. When the doctor’s contract at a hospital was not renewed, she decided our client was to blame. She took to the Internet and posted false comments about his job performance, in some cases assuming the false identity of a nurse and in others a patient. When we presented irrefutable proof that she had published the anonymous comments, she admitted what she had done. If ever there was a case that should have settled, this was one, but her insurer picked up coverage and for unknown reasons decided to fight the case right through trial, despite our very reasonable settlement demand.

The result was disastrous for the doctor. Continue reading →

All Clients Will Shop On Price if That is the Only Distinguishing Factor

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I’m not here to spread doom and gloom about the legal job market, but these articles keep catching my eye. In an article from the TaxProf Blog, where Paul Caron reported on a service he described as the eBay for lawyers, with the terrible name Shpoonkle. The Shpoonkle service allows clients to post their legal problems, and member attorneys bid on the work.

The site was started by a law student concerned about his $140,000 in student loans and the poor job market. Apparently his concerns are well founded. Caron cites the Association for Legal Career Professionals, which reports that only 64% of law graduates in 2010 had full-time jobs that required a J.D.

What I found interesting was the very negative response to the service from another blogger, Scott Greenfield on Simple Justice.  He suggests that “[a]ny lawyer who signs up for this service should be immediately disbarred, then tarred and feathered, then publicly humiliated.”

Why so?  Although Shpoonkle might make the process a little more structured, this bidding war among attorneys has been going on since advertising was legalized. Mill practices like simple Chapter 7 bankruptcies, uncontested divorces and traffic ticket defenses have competed on price for decades, and that is as it should be. Any system that discourages competition and forces an artificially inflated price should be rejected. Providing affordable legal services is something we should all strive for.

Even more sophisticated matters are being shopped around by clients. Recently a prospective client called to say he was retaining me after consulting with seven other attorneys. He confided that I was on the high end of prices he had been quoted, but that he had been impressed by my even-tempered approach, while all the other attorneys had wanted to go to war. But that’s really just another way of saying that he thought I’d be less expensive in the long run.

The takeaway here is to know that clients will always shop on price if that is the only distinction among attorneys, and it is your job to make it about something else. Continue reading →

Sleazy Attorney Technique No. 3: “Discovery? What discovery?”

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I have a brilliant method to beat this technique, if I do say so myself, and I have not seen one other attorney who uses this killer method.

First, here is how it all comes about. I serve discovery, wait 40 days for the responses, nothing comes, I write a letter to opposing counsel informing him that I never received the responses, and realizing he forgot about all that damn discovery, the attorney responds, “Discovery? What discovery?” He pretends never to have received it. Never mind that I have absolute proof that he did receive it. I send most discovery by overnight mail, and the service I use either obtains a signature or sends me a picture of the discovery sitting on the receptionist’s desk or stuck in the door of the office. But this is a sleazy attorney we are talking about here. He doesn’t care that I know he’s lying.

Here is what used to happen. I would say, “OK [you stinking liar], I’ll fax over another copy of the discovery and you can have ten days to answer.” He would fight me and demand the full 30 days, or thank me for the ten days and then still not serve the responses. I would then bring a motion to compel, he would serve the responses a day or two before the hearing, and then report to the court that it was all just a big misunderstanding because he never received the original discovery. Despite all my proof to the contrary, the court would declare the motions moot because the responses were served, and award so little in sanctions that they didn’t come close to covering the time spent on the motions.

These same attorneys often use the modified technique of “Motion? What motion?” when they realize they failed to file an opposition on time.

There are a lot of overworked and disorganized attorneys out there, and I have run into a number of them who basically use motions to compel as their tickler system. The simple technique to beat them at this game is to send courteous reminder letters. Continue reading →

Attorney App of the Week – Sign-N-Send

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Litigation can move fast. Under normal circumstances, there should be sufficient time for clients to review and execute declarations and verifications, but what about an ex parte hearing noticed for tomorrow? By the time you draft the opposition, there might only be hours for you to obtain a signature from the client on a supporting declaration.

I had that precise situation arise recently, and when I called to inform the client that I was sending over a declaration for his review and signature, he informed me that he was on vacation in Montana, hours from any place he could print, sign and return a declaration. (I don’t know how the hell he even had cell service.)

At one time, before scanners became commonplace in most homes, depending on the nature of the case, I would require the client to have a fax machine. I found a source for plain-paper fax machines that cost just $79, and clients never objected to this small expense when I explained the emergencies that might arise.

Now, it’s less of an issue because most clients know how to scan a document, but I still run into technologically challenged clients who can’t quite figure that one out. Unfortunately, fax machines are becoming less and less of an option because so many people are dumping their land lines. In any event, whether by fax or scan, both are defeated if the client is nowhere near the scanner or fax machine. Neither would help with my Montana situation.

Enter Sign-N-Send.

With this iPhone/iPad app, so long as the client has cell service or wi-fi access, he can receive, sign and return any PDF or Word document I send. The app even allows for selection of “ink” color, in case you have some situation where the document has to be signed in blue ink. If my client has an iPhone, I encourage in the strongest possible terms that they get Sign-N-Send in order to be prepared for an emergency. In the Montana situation, I just had him install it right then and sign and return the document.

The app is free, but in the free version an ad is inserted as the first page of every sent document, which in really annoying, but is an option is your client is really cheap. The paid version is just $4.99; expensive for an app but much cheaper than a fax machine.

Yes, I know attorneys who get around all of this by simply having the client authorize the attorney to sign, or who get verifications signed in advance. I think those are terrible ideas. The act of signing a document is very important, and makes the client realize they are attesting to something.

Don’t be that Attorney – Ten Ways to Make Yourself Look Foolish

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The Practice of Law Tips
Don’t be made to look the fool.

I’ve had this article in mind for quite some time. I see attorneys make the same mistakes over and over, and I thought by posting an article listing those mistakes, I would have a place to send them to explain, in the nicest possible terms, that they are making themselves look like idiots.

The article idea sat on the back burner because I had not witnessed these mistakes for awhile. I was almost beginning to believe that with the ease of information retrieval via the Internet, perhaps attorneys had finally figured out these mistakes on their own. Foolish me. I saw opposing counsel in three of my cases make these mistakes just this week.

Most of these mistakes are specific to California civil procedure, but I’m sure even if you practice in another state you will have attorneys making similar mistakes under your procedural rules. I’m sorry this article is so long, but attorneys do a lot of boneheaded things. Feel free to direct other attorneys here when you see them making these mistakes.

1. Making a threat not based in reality.

Earlier this week, my firm substituted into a case involving a business tort. There had been problems with the client’s discovery responses before we got involved, and the day after we came into the case there was a hearing on a motion to compel. I successfully persuaded the court to reduce the sanctions sought against the client, but the court appropriately awarded about $600 in attorney fees for the time opposing counsel had spent on the motion.

Two days later I received a faxed letter from opposing counsel, demanding that our client “pay the $600 in sanctions within 48 hours.” The letter explained that if my client did not pay those sanctions with 48 hours, opposing counsel would go to court for additional sanctions.

There is no “sanctions for failing to pay discovery sanctions” motion. Sanctions can be reduced to a judgment, making all the normal methods for collecting a judgment available, but the court cannot force the payment of discovery sanctions. Continue reading →

Law Practice Tip: Hide Your Receptionist

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Law Firm Lobby
Every law firm lobby should include a string quartet.

As business people go, attorneys might be the worst offenders at doing things just because it’s what everyone else does. One example of this that recently dawned on me is the way they use their receptionists. Most park them in the lobby, and that’s a terrible arrangement.

In most cases, your receptionist should not be sitting in the lobby area. A big firm might have to suffer this necessary evil, since many people will be flowing through the lobby and the receptionist must act as a traffic controller, but for smaller firms it makes no sense for a number of reasons.

1. It makes clients waiting in the lobby privy to all phone calls.

I recently attended a deposition in Los Angeles, and the four attorney firm had the usual set up with a receptionist parked in the lobby, behind one of those curved reception desks. My client and I sat in the lobby for a few minutes waiting for opposing counsel, and heard every phone call that came in. In most instances that might not be a problem, but someone called who was obviously upset about not hearing from one of the attorneys, and we heard the receptionist apologizing and offering excuses. Not very professional. Continue reading →