Law Blog

Lawyers get a bad rap.  The public often sees attorneys as conniving opportunistic people who are only out to make a quick dollar by capitalizing on the misery of others.  Ask most people to describe what they think the typical attorney is and you’ll likely get the stereotypical view of the fast-talking imposing dark-suited figure with slicked back hair and a total lack of morals.

The media doesn’t help this image either.  For every Atticus Fitch, there is a multitude of Lilah Morgans.  It’s no wonder then why so many distrust attorneys.  With a reputation like that, who would ever want to deal with one, let alone be forced to hire one to represent them?

Though as bad as a Lilah Morgan can be, what hurts the image of attorneys more are the Lionel Hutzes, the incompetent lawyer who takes your money and does absolutely nothing in return.  This image is in many ways much worst then the evil money-grubbing one.  Chances are most people would rather have an amoral competent attorney than an amoral idiotic attorney.  Couple this fear with the terrifying prospect of actually being involved in a legal dispute where the only way out is to retain a lawyer, and you’ve just described hell.

This fear can be described in two simple words: legal malpractice.  This horrible phrase inevitably lingers in the back of the mind of every person who has hired a lawyer.  Because poor representation not only means you’ll likely lose whatever legal issue you’re involved in, but it also means that you’ll probably have to deal with the expensive headache of cleaning up your lawyer’s mess afterward.  Not to mention the additional nightmare of bringing a new lawsuit against your old attorney.  To some people, this prospect is enough for them to want to represent themselves rather than to retain a lawyer.

But is legal malpractice really something you should be afraid of?  Yes, it is.  But is it really all that likely to occur?  Probably not.

Legal malpractice isn’t as common as the public may think.  Lawyers are subject to constant scrutiny, from the court, their respective state bars in the form of continuing education, and their clients.  Furthermore, the process of becoming a lawyer is no easy task in of itself.  To be admitted into law school takes top grades and a high LSAT score, not to mention the three years it takes just to finish law school.

In fact, the total number of legal malpractice cases handled by LegalMatch.com in California alone is on average 50 percent less then the number of medical malpractice cases handled in just the northern half of California.  This statistic is true almost uniformly across the board.  Personal injury, family law, even wrongful termination cases on average total more in number than legal malpractice cases.  In a sense, it’s much easier to find a good attorney, than it is to locate a good doctor, employer, or spouse!

People don’t like lawyers. They don’t like lawsuits. They don’t like courtrooms. There really is not much about the law or the court system that people really do enjoy. Lawyers that don’t return phone calls, over-bill their clients, or are just downright rude don’t really help the profession very much.

Lawyers who steal money from their clients, miss important deadlines, or just don’t care about the case, on the other hand, disparage the entire legal system. Attorney malpractice is the nasty big elephant in the room whenever there is a dispute between an attorney and her client, no matter how trivial the disagreement may be. In this litigious society of ours, no one is more cognizant of the risk of a lawsuit than lawyers themselves.

Last year, LegalMatch.com received thousands of potential clients seeking a malpractice claim against their former attorney. The majority of these claims were for your usual shenanigans:

• 12% said they failed to return the client’s money
• 20% of respondents claimed their attorneys failed to file their lawsuit on time.
• 29% said they failed to understand the law related to the case

Perhaps most interesting: 37% said their lawyers failed to get the result they had promised them.

Here is a big tip: If you walk into an attorney’s office and they say “If you hire me, I promise you that your case will turn out this way, guaranteed,” run away fast. You might have the easiest case in the world, but no one in this business should ever guarantee anything, ever. Even worse, proving a malpractice case for not getting the result promised would not be very easy.

All malpractice lawsuits are complicated and difficult to win. This translates into a very high bill for your lawyer’s services should you want to pursue a malpractice claim. The best thing you can do to avoid this nightmare is hire a good attorney from the get go. Not just an attorney with the credentials, but an attorney with a good reputation. However, legal matters are often highly personal. It is not easy to just call your friend and spill the beans in order to get a trusted referral. So what else can you do?

There are numerous easy steps you can take to ensure you are hiring a reputable lawyer. For instance, many states display an attorney’s disciplinary record online. In California, every attorney is listed on the State Bar website, and their disciplinary record is at the bottom of the page. You can also request the full discipline record for every attorney from the State Bar in writing. Although not every disciplinary charge is as serious as the next one, each one should be investigated and taken into consideration when you hire your attorney.

Your second resource is a little less obvious but extremely easy: the all powerful Google. Put the attorney’s name in quotes and search away, you may be surprised what you find. A caveat, however: take everything with a grain of salt. Not everyone understands why their case was lost, or why the judge gave them a harsh sentence. It is not always the lawyer’s fault, even though it may seem that way. Also remember that John Smith, Esq. may have the same name as John Smith, party animal. Use your better judgment to weed out the useless or irrelevant information.

Hiring your lawyer is the first big step in your case, and it may be the most important decision you will make on your own. Do it right and do it once.

Recently, Wolfe Law Group brought a lawsuit in the U.S. District Court for Eastern Louisiana, asserting that Louisiana’s new advertising rules for lawyers violate the First Amendment right to commercial free speech.  The new rules, which will be the most severe in the country, restrict lawyers’ communications on blogs, online bulletin boards, and other online forums.  The new attorney advertising rules will also forbid lawyers from referencing past successes, forbid nicknames or slogans that imply a capacity to get results, and forbid re-enactments, endorsements from actors, and client testimonials.  Additionally, the new rules designate a committee to review advertisements and authorize sanctions for lawyers found in violation of provisions. 

Why did Louisiana draft these new rules?  Officials say they will “protect the public from misleading ads and preserve the intergrity of the legal profession.”  But was there evidence consumers were being harmed, or were the rules “motivated solely by a general distaste for certain forms of lawyer advertising and by hostility toward lawyers who assist injured consumers“?

In a previous case, the U.S. District Court for the Northern District of New York found similar advertising rules banning nicknames, mottos, client testimonials, and internet pop-up ads unconstitutional.  Specifically, the court found that the state failed to show the lawyer advertising rules were necessary to assist consumers, and the rules were not narrowly tailored to effectuate the state’s asserted purpose.  Furthermore, the FTC has expressed opposition to these types of restrictions on speech.  Yet, the overall trend among state bars is to impose greater restrictions on lawyer advertisements. . . .

As one astute blogger pointed out, “One wonders if federal regulation of legal marketing will ever overtake the state-by-state model currently saddling the profession. So many firms have so many offices across so many state lines that the old regulatory model hardly makes sense anymore.”

If we do end up with uniform regulations, I hope they don’t unfairly restrict blogs, which provide consumers with uniquely valuable information about lawyers.  Without access to blogs, consumers can still rely on referrals or choose lawyers based on their credentials; however, blogs give consumers a glimpse into prospective lawyers’ thoughts and legal reasoning.  This type of information should not be censored.

Recently, the Trial Court Performance and Accountability Commission proposed a rule that would limit the public’s access to court information in Florida.  For almost 20 years, the court reporting office at the Palm Beach County Courthouse has furnished the public with recordings of court proceedings for a nominal price.  However, the proposed rule would limit public access to recordings, making them available only after they have been edited and approved by a judge.  The rule would also force people to buy transcripts at an increased cost, as much as $4.50 per page (which translates to hundreds or even thousands of dollars per case!). 

Many Floridians, including lawyers for the First Amendment Foundation in Tallahassee and the Florida Association of Public Defenders, oppose the proposed rule.  Some are concerned that citizens’ access to public information will be severely limited.  And public defenders have complained that they don’t have the budget to buy transcripts, which could unduly prejudice defendants whose cases depend on proving improper courtroom conduct.  Others worry about giving judges full discretion over who has access to public proceedings.  Some lawyers have nicknamed the rule the “Judicial Protection Act, based on the belief that the commission (which is largely comprised of judges) proposed the rule in order to protect their public behavior from being broadcasted to outsiders, including media such as YouTube. 

Proponents of the rule claim that it is intended to protect citizens’ private information, which can be disclosed during courtroom proceedings; for example, bank account and Social Security numbers can be divulged at child support hearings, and microphones can inadvertently pick up confidential conversations between attorneys and clients. 

It makes sense to me that confidential information about parties should be edited before recordings or transcripts are released to the public.  However, private citizens and attorneys with limited resources must be able to access these materials at a reasonable price.  Additionally, because unfortunately not all judges are upstanding arbitrators of justice, impartial third parties should be the ones editing the materials, not the judges themselves.  Otherwise, the risk of bias is too great, and the purpose of the courts – to provide justice for all – will be lost.

Once upon a time, lawyers were venerated for their fine morals and commitment to upholding the law.  Since the 1970s, however, public opinion has plummeted.  In fact, according to recent polls, lawyers were among the five least-trusted occupations, and almost half of respondents ranked the legal profession as having either “some or hardly any prestige at all.”

What happened?  Some say that pop culture and the media’s portrayal of lawyers (think Carlito’s Way, The Devil’s Advocate, and The Firm) has dampened public opinion, and certainly there are bad apples who fuel negative stereotypes; moreover, some dismiss the State Bar’s disciplinary practices as woefully inadequate.  Others point out the sad reality that most people associate lawyers with some of the worst times in their lives – divorces, personal injuries, and probating a loved one’s will, for example.  

Another reason for lawyers’ bum rep stems from the fact that criminal cases – despite being a slight minority of lawsuits overall – are made much more public than civil ones.  Furthermore, people tend to distrust lawyers because their profession sometimes calls on them to defend the “worst of the worst.”  Finally, even when people have a good experience with a lawyer, many see that experience as unusual and cling to the more global negative perception of lawyers.

One way to address negative perceptions as well as legitimate concerns surrounding the legal profession is to start early – by training students in Christian law schools or offering additional ethics classes at traditional law schools.  At the other end of the timeline, solutions include privatizing professional liability boards and forcing wayward lawyers to pay for the costs of their own prosecution. 

While religious-based education may not be for everyone and reformed disciplinary measures may come too late, I’m hopeful that as truthful information about lawyers becomes more accessible to the general public, and prospective clients are given the proper background information to choose a lawyer wisely, we can dispel some persistent myths.  In the meantime, I hope studios start producing more movies like The Rainmaker or Erin Brockovich . . .