The New Attorney-Client Relationship, Part I

In the November 1, 2016 Ethics Forum column in the Pennsylvania Law Weekly written by Samuel C. Stretton, a local lawyer, he laments about how the relationship between attorneys and clients has changed, deteriorated, and become adversarial, over the last 40 to 50 years. I found the article to be fascinating, and I am devoting two blogs to the issues he has raised. This is the first blog.

 

One could argue that life in general has changed, relationships have changed among friends and co-workers, and that our society has become a more difficult place in which to exist and function.  That change has also impacted the law, and the manner in which participants in the legal system interact with each other.

 

Some of the comments Mr. Stretton makes follow, and I will provide my thoughts on these comments based on my experiences:

 

Comment: “The loyalty and trust that used to be between an attorney and client has disappeared”.

 

Response: I don’t necessarily agree. I think it depends on the individual participants. My Firm has many, many clients who have been loyal to us through the years, and continue to trust us with their business. We strive to maintain a good relationship with our clients and communicate with them through a winter holiday card we send each year listing our practice areas. This has always resulted in a flurry of calls at the beginning of the new year from former clients who have read our card reminding them of our existence (more on this comment below) or reminding them of all of the areas of the law we practice. We also send out a Constant Contact Newsletter quarterly via e mail in which we add news about seminars we have taught, articles we have written, etc. Firms larger than us have an ongoing marketing agenda and sometimes professionals who do nothing but handle their marketing needs.

 

Comment:  “Most clients are willing to turn against the lawyer at the drop of a hat and to blame the lawyer for everything”; “even clients who express their satisfaction for the lawyer will turn against the lawyer if the decision or the verdict is adverse”; ”most clients accept no responsibility for their conduct and if things don’t go their way, their first defense is to blame the attorney”.

 

Response:  I don’t agree that most clients do these things. However, I believe that there are clients who blame others for their problems, who do not accept any blame for the situation they may find themselves involved in, and who are quick to blame their attorney or “the legal system” if they are not pleased with the result, even if the result favors them. I think some of this occurs because we live on the East Coast, where people feel free to offer their unsolicited opinions, and we live in an area which is one of the most litigious in our country. This is borne out by statistics on the types and numbers of cases that are brought in our local courts. I think some of these attitudes are byproducts of so many things being posted on the Internet, some of the story lines of movies and television series, and the inability of many people to grow up and accept the responsibility of their actions and the vagaries of what life brings their way.

 

Unfortunately, an unhappy former client who seeks to make him/herself vocal, even without a basis in fact or law, now has an avenue through the Internet, to damage the reputation of an attorney. I believe that although the process has been slow, the time will come, when the law, or society’s standards, will come to place limitations on what people can legitimately say or do to damage the reputations of others, much like those limitations currently exist for other forms of media.

 

Comment:  “There is no loyalty to return to the same lawyer. One does a good job for a client and then finds out that the client had a case that would have produced a good fee, but went elsewhere”.

 

Response:  I don’t necessarily agree that clients are not loyal to one lawyer. However, I do agree that clients often do not return to one lawyer, as in years past, when one lawyer or law firm often represented many family members for generations, and was referred to as “the family retainer.” I have written about this situation in a previous blog, not from the standpoint of disloyal clients, but from the standpoint that clients are bombarded with unsolicited information from advertisements in all forms of media, making it appear that all lawyers are super-specialized, and they assume that a lawyer they used for a case may not necessarily practice in the new area of the law they require. As I stated previously, a client may sometimes be represented by 4 or 5 different lawyers for one related matter, and most of those lawyers do not know of each other’s existence, and sometimes work at cross-purposes. An example of this is someone who was injured in a parking lot leaving their workplace; subsequently filed a worker’s compensation claim; was not accommodated by their employer while they sought medical treatment; was terminated for bringing the worker’s compensation claim; and then filed a claim for Social Security disability. In that situation they require one or more lawyers familiar with workers’ compensation law, personal injury law, discrimination/civil rights law, and Social Security law. It is unlikely that one lawyer will practice in all of these areas.

 

As a result, former clients will either succumb to the constant advertisements of lawyers in the media, oftentimes without remembering, considering, or consulting with their previous lawyer, or they will be referred by one of the lawyers they have consulted to other lawyers known by that lawyer. Once the above happens, it is frustrating to the lawyer who the client should have consulted initially, and who did a good job for them before. Every lawyer or law firm has their own network of attorneys which have been established over the years to whom they can refer clients if they do not or cannot handle a client’s new case.  Many of these referral lawyers have been tried and tested by these lawyers and firms. Even if they don’t have anyone in their network they can refer clients to, they can direct the client to a good referral source. Just because a lawyer or firm advertises relentlessly in the media does not mean they are necessarily competent lawyers in the view of other lawyers.

 

 

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The American Way

Ben Steverman recently published an article with Bloomberg News which concluded that Americans are addicted to their jobs. Steverman stated that compared to workers elsewhere in the world, Americans work more hours,, retire later , and take fewer vacation days. A comparison with European workers finds that the average worker in Europe works 19% less than their American counterpart. That translates to about 258 hours a year and about an hour less each weekday. In sum, American workers work about 25% more than Europeans. Also, more people over age 65 are working than at any other time in the last 50 years.

 

Of course, these statistics vary by country, with Swiss work habits being similar to those of Americans, whereas Italians work 29% fewer hours a year than Americans do. Theories for these differences include 1) that American workers feel that their efforts will pay off in the form of promotions and income; 2)that comparatively high European taxes reduce the incentive of Europeans to work harder; 3) that Europe’s stronger labor unions control the number of hours that employees are permitted to work, or their ability to move forward in their jobs; and 4) that generous pensions decrease the incentive for older employees to work as hard or as long.

 

As early as the 1970’s there was no difference in the hours worked between Americans and Europeans, so the change in circumstances is interesting, and I feel has much to do with American culture, self-esteem of workers, and the need to keep up with the Joneses.

 

Having traveled to Europe many times, at least from my experience, workers seem more relaxed. In Rome I have noticed that co-workers often leave their buildings a couple of times a day for coffee and snack breaks. I rarely have disagreements with people in Europe because people are not giving me attitude. Back home I often have many disagreements each day because the law is an adversarial process, and people in this area have attitude.

 

Although the European economy is slowing, and even faltering, there are lessons to be learned about the quality of life as lived in Europe compared America. We all know that America is a great country, yet with freedom comes responsibility. One of those responsibilities is to treat each other in a civil fashion. That lesson seems to have gotten lost in America. This lack of civility carries through into our personal and business lives. This lack of civility has carried through into this Presidential election year. Watching the debates makes one feel as if we are being slimed. It is hard to believe that vicious things are being said by so many people involved in the election process, and that courtesy between the sexes has disappeared. This lack of civility by our governing officials is shocking and embarrassing, and has seeped through to citizens in general. Our children have lost their role models, and what can one say to them when the people who boast of their superiority and believe themselves capable of leading our great country seem to wallow in the mud.

 

So, I think we should all vow to be a little more civil to each other, to not get caught up in the general election hysteria, to not give the media the attention it craves, to decide that we need to enjoy our lives a little more, and to not worship at the alters of ego and money. Good luck to us all, as we will need it to be stalwart in the days that lie ahead after the election.

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KNOWING THE LAW

More than once, after I tell someone who calls me inquiring about their situation, that they do not have a case under the law, or their case would be very expensive to process and their chances of prevailing are slim, they have angrily said “I’m going to find a lawyer who knows the law!” I believe, after nearly 43 years of practicing the law, that I pretty much know the law, and if I don’t know it, I know how to research it.

The majority of people search for a lawyer by surfing the Internet, using the yellow pages, or seeing paid advertising; using a referral service; receiving a referral as part of a workplace benefit; or receiving a referral from relatives, friends, co-workers or neighbors.

Often the process of locating a lawyer who practices in the relevant area, or even finding a lawyer who will take the time to consult with a person, is time-consuming. One would assume that after going through the effort and time involvement of finding or speaking to a lawyer, that people would respect the time a lawyer spends consulting with them, time for which the caller is often not charged, and believe the information received from that lawyer, who has training and experience in the law.

Yet people often have unrealistic expectations of what the law says, of how the law is actually interpreted by the courts, of how the legal system really operates, and the amount of time, effort and funds necessary to produce the type of result they want to achieve.

One area in which people think they have greater rights than they actually have is in the civil rights and employment law areas.  A soup to nuts civil rights case is very difficult and expensive to pursue. There are many plateaus which must be reached before a matter is even permitted to proceed to a court.  There is a high cost of engaging in the discovery process to root out information which people often just have a hunch about.  Convincing a judge or a jury that one has proved their case is the final obstacle.  These are just some of the obstacles which must be reached and overcome in proving one’s case.

Yet, every so often, after I have taken my time to patiently explain the intricacies of the law to a caller, and despite my many years of experience for which I believe I deserve some credit and respect, someone who does not want to accept the realities of the law will say they don’t believe me or they don’t agree with me.  What these people really mean is that they are not seeking a lawyer who knows the law, because most experienced lawyers know the law. What they really mean is they are looking for a lawyer who agrees with their version of what the law is or should be. And what they really should be doing is being grateful and respectful of a lawyer who has taken the time out of their busy day to speak with them and give them realistic advice about their situation.

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FEAR AND LOATHING IN THE WORKPLACE

What is happening in the workplace? Although the employment rate appears to be increasing, in my experience, employees are getting fired from their jobs at an alarming rate.  Many of the employees getting fired are long-term employees. Others are short-term employees, whose performance appears to be golden one minute, and the next minute they are being fired for some allegedly reprehensible, and often false, reason. My Office is always dealing with a myriad of issues involving employment and civil rights matters as they pertain to employment. We represent employees and employers at any given time. Since the recession is over, employers don’t seem particularly concerned about retaining their employees and employees don’t seem to care about leaving one job to take another.

 

On the employee side we  are assisting clients by trying to maintain their jobs, helping them make accommodation requests under the Americans With Disability Act, arranging leaves under the Family Medical Leave Act, assisting them with short-term and/or long-term disability claims, defending them against sexual harassment charges, making certain they are receiving the progressive discipline and appeal rights their handbook or company policies entitle them to receive, assisting their unions, requesting their unions to better assist them as the employees are not pleased with the representation their unions are providing, representing employees at unemployment compensation hearings, and/or negotiating severance packages offered by either the employer who wants the employee to leave for one reason or another, or by the employee who wants to leave for one reason or another.

 

On the employer side we are discussing with employers how to best discipline employees, how to lay off employees, how to terminate employees, what types of severance packages to offer employees, if any, and what language should be included in a written release of rights, representing employers at unemployment compensation hearings, defending employers before government agencies who investigate discrimination cases and licensing agencies, and negotiating settlement agreements with these same agencies.

 

The practice of law involving employment and civil rights, is very difficult.  That is because most states, including Pennsylvania, are at-will states, which means that employers don’t really need a significant reason to discharge an employee, and employees don’t need a valid reason to leave their employment. However, in general, we have been able to achieve some wonderful, and even remarkable, results for our clients. Of course, every case result depends on the facts, the people involved, and the opposing lawyer involved. However, if reasonable minds prevail, difficult situations can be for the most part negotiated and resolved, lessons can be learned, and life goes on.

To employees I have some advice:

  • Consult with an attorney even if you think you have no legal rights.
  • Consult with an attorney even if your employer threatens you that they will withhold some benefit or severance if you do so.
  • Keep your head about you at all times, especially when you are at combination social and business gatherings, because what you say and do, even not on the job, especially when you have had a little too much to drink, can definitely come back to haunt you.
  • Be reserved on social media. Everyone does not have to know what you are always doing, what you are always thinking, or what you think of them or others. People say and do things on social media they would never think of doing at the workplace, and their actions can get them terminated from their jobs.

 

To employers I have some advice:

  • Make certain you are following your written policies and procedures, and in some cases, your standard patterns and practices when dealing with employees.
  • Make certain that your actions are not violating the law before you take those actions.
  • If it is your policy to conduct investigations of workplace problems, then conduct a broad and fair investigation. There are always two sides to every story, and be careful that the side you are listening to is not being influenced supervisors who have their own agenda.
  • Do not volunteer information or provide documents to government agencies without consulting a lawyer first.

 

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FANTASYLAND

This is a Presidential election year, and this month I listened to many fine speeches given by and on behalf of both the Democratic and Republican candidates.  Even their children were drafted into extolling the virtues of their respective parents. All of the speeches outlined the virtues of each of the candidates and painted the other as the devil incarnate.  But, if the truth be told, each of the candidates carry considerable baggage.  Each of the candidates was most likely an absentee parent, despite their children alleging otherwise. Each of the candidates either had, or were rumored to have, extramarital affairs.  Neither candidate has stellar reputations for honesty and fair dealing.  Each of the candidates have had their character questioned.

 

Does the above mean that the candidates should not be elected as President? No, it just means that they are human, and that they are subject to the same human frailties as every other human.  It does mean that they have had the good fortune, the tenacity, the financial resources, the human network, or most likely a combination of all of them, to rise above and/or overcome their issues to the level where they are considered Presidential candidate material.

 

However, for most of the rest of us, we are not as fortunate. Both of the candidates’ daughters are married to men whose family members have served time in prison for some type of financial fraud.  Both of the candidates have suffered severe financial losses and incurred large debt.  Both of the candidates have made statements or signed documents and later disputed that they made the statements, or that the documents they signed are valid.  Yet, how many of us can so easily walk away from our problems in life and run for office.

 

The reason I titled this blog Fantasyland is because I encounter many people who appear to be in fantasyland with regard to the law and their legal issues.  I will give you some examples.

 

Lady A called me because she was uncertain if her brother was operating under a valid power of attorney allegedly signed by her mother, and if the power of attorney was valid, whether he was exceeding his authority under the power of attorney.  After patiently explaining to her the many factors that have to be considered in such an analysis, and that the law recently changed in Pennsylvania regarding powers of attorney, she appeared frustrated that I did not have a quick answer for her, and then asked me to explain all aspects of the new law to her. She, as well as others who call me, do not seem to respect that the law is complex, is ever changing, is often formatted depending on a particular set of facts, that just because laws exist, often they are not enforced, and that lawyers have a purpose, training and knowledge which laypeople usually do not possess.

 

Lady B, a doctor employed by a hospital, who earns a high salary, called me because she signed a non-compete agreement which requires her to notify her employer a certain number of months in advance if she wishes to not renew her contract. The penalty for not providing this notice is that she will owe her employer one (1) year’s salary. Yet she appeared to believe that because she did not think her employer had treated her fairly, she could just walk away from this penalty, and her employer would not pursue her. She also was reluctant to spend a small amount for a lawyer to determine if her employer would agree not to enforce the contract. These types of problems usually do not resolve themselves, so the decision to save a small amount in hiring a lawyer could have major repercussions for her and result in large legal fees if her employer sues her for violating the terms of the agreement.

 

Gentleman C contacted me because his bank account has been attached.  The only way this could happen aside from a family law court action is if the person had a court judgment entered against him.  This type of call is becoming more common in our office.  Many people are aware that they have been sued, and either did not respond or did not appeal from said suit. They apparently feel that no one can do anything against them to collect the funds owed, and then they are shocked when their bank account is frozen and the funds attached.  These judgments remain valid for many years (21 years in Pennsylvania) for money judgments. Other persons may not have known about the existence of said lawsuits because they had moved or had otherwise not been served with the legal papers. Yet, they have not been vigilant about monitoring their credit reports.

 

I also hear from intelligent individuals who own and operate their own businesses, who encounter problems because they do not realize that their business skills do not mean they have the knowledge and experience equivalent to lawyers.  Unfortunately, they usually ask us to represent them after they have done things, made statements, or taken actions which have seriously disadvantaged them.

 

So, the lesson I hope to impart in this blog is although there are many things in life we cannot control, there are many things we can.  It is important to contact a lawyer and seek a perspective that may be different than the perspective you currently have, as the legal process is complex and often fraught with many treacherous trenches.  Although there may be a fee involved, often the cost savings is enormous. So, don’t be penny wise and pound foolish in consulting with and hiring a lawyer.

 

 

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GOVERNMENT AGENCY MORASS

Another Presidential race year is upon us. Not only is it upon us, but it seems like news about the aspiring Presidential candidates is being ingrained in our pores. If the strategy of politicians and the media is to annoy us, exhaust us, shock us, and nearly destroy our faith in the democratic process, they have accomplished these things this year.

 

I will not discuss individual Presidential candidates or their views, or my candidate preferences, but I want to discuss the state of our local, state and federal government agenciesfrom the perspective of our attorneys, who deal with these agencies on a regular basis.  Due to our interaction with these agencies I fear for the state of our government. I was going to title this blog “We Need a Revolution”, but I thought the CIA might visit me if I did. But clearly, some action has to be taken to shake up the stagnant agencies we interact with.

 

Our taxes support government agencies and pay for their staff. Yet nearly in every instance in which we deal with government agencies, we are forced to deal with incompetent and unconcerned staff who apparently lack the skills, knowledge, intelligence, common sense, and training, that they should possess in order to do their jobs.  Not only is dealing with these staffers frustrating, anger provoking, and time consuming, but it is often expensive for our clients, who are paying us for the time to straighten out what these staffers have usually messed up.

 

The bottom line, however, is that the action or inaction of these staffers seriously and adversely affects the lives of our clients, many of whom have no choice but to deal with government agencies because they have become disabled and are no longer able to work.

 

Although I can provide many examples of the incompetence of we regularly deal with, today I will limit my examples to the Social security Administration (“SSA”). Nearly any interaction we have with the SSA makes us want to run screaming from the room.   For example:

 

  • The SSA disability process has gone electronic for the most part. That is good. But, that does not mean that the SSA age-old practice of losing, misplacing, and/or saying they never received documents from attorneys has ceased. In nearly all of our cases, despite sending in the required forms notifying the SSA of our representation, SSA staff act as if they have never heard from us, and often we have to send out the same forms three or four times.

 

  • The SSA has a good trick to collect money. They frequently tell people who have been approved for and who are receiving disability payments that they have been overpaid.  It is scary for a disabled person who relies on SSA benefits for their livelihood to receive a letter they perceive as threatening from a federal agency.

 

My experience with these overpayment demands and requests is that they are often bogus, based on faulty calculations, and based on faulty presumptions. Regardless, the SSA terminates the benefits of recipients during the pendency of a years-long appeal process. While the SSA may be ultimately be proven wrong, recipients are stranded without income for years due to these mistaken overpayment demands. The SSA likes to play “gotcha” and claim the recipient failed to comply with a particular obligation or duty. This is often laughable. No SSA employee knows everything about the myriad of SSA regulations, laws and guidelines, as they are “trained” in only a small and particular aspect of the law. To blame a disabled recipient for not doing something to comply with often obtuse requirements is totally inequitable and ridiculous. Yet, I venture to say that most recipients repay SSA the alleged overpayment because they are in fear of the SSA.

 

  • SSA files at SSA offices, either in electronic format, or paper format, if they are older files, are frequently incomplete and do not match up to the files maintained by attorneys. In a recent case a judge said he did not appreciate our sending medical paperwork a day prior to the hearing. We stated that we did so because the prior paperwork we sent was not on the record, so we resent it. He stated that the records we sent previously were in his file, but had not been entered on a record we could review online. Ok, this theory is like Alice in Wonderland encountering strange things in the rose garden. Lawyers are frequently criticized by administrative law judges for not creating a complete record, which is often very difficult as we have to rely on receiving records from medical providers who are busy themselves. But we are then criticized for making certain the record is complete.

 

Aside from the SSA, I recently had arguments with staffers at two government agencies, one state and one federal, because they insisted on dealing directly with our clients. Our clients engaged us because they are ill and need professional guidance in maneuvering the procedural obstacles between their illness and relief. So what is the point of eliminating the attorneys from this process? There is rational answer to this question.

 

So, my recommendation is let’s all spend less time arguing about politics and more time determining how we can fix our very broken government agencies.

 

 

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THE LUCK OF THE DRAW

In nearly every matter we work on, we deal with opposing counsel. I have realized that the single most significant feature in how a matter proceeds, and indeed how a matter is concluded, is based on the personality, reputation, character, work habits, ethics, knowledge, and practice of that opposing counsel. I have identified various characteristics that attorney who have been our opposing counsel possess, and this blog discusses them. Although I have used the pronoun “he”, these descriptions apply to lawyers of both sexes.

 

The Missing in Action Lawyer.   This type of lawyer may initial return telephone calls or e mail promptly, or may even agree to resolve a matter, but gradually becomes less responsive, or sometimes disappears entirely over time. By “disappears”, I mean that the lawyer is still alive, but becomes less and less responsive.  I assume that the reasons leading to the disappearing lawyer are one or more, such as the lawyer becomes involved in other matters, the lawyer becomes bogged down with deadlines or litigation, the lawyer doesn’t manage his time well, the lawyer is lacking in the necessary administrative support necessary, the lawyer has health and/or family problems, or worse, such as substance abuse.  It is very frustrating dealing with a lawyer like this.  In one instance, a lawyer has referred me several good cases, but whenever I have tried to contact the lawyer to communicate my thanks, I have never received a return acknowledgement. In another case, although the other attorney and I agreed early-on on the terms of an agreement, it took many months until I was able to receive the written agreement from the other attorney. This latter situation is frustrating because the attorney did not communicate the reasons for his delays, and my weekly contacts urging his response were usually ignored. Although my client was understanding about the delay, other clients may have become frustrated in this situation.

 

The Bully.  This type of lawyer’s tactics is to threaten other lawyers with legal sanctions, disregard what other lawyers say, file unnecessary motions, conduct unnecessary or voluminous discovery not warranted by the case, refuse to discuss settlement in a rational manner, uses profanity, makes sexist comments to female lawyers, has no respect for his fellow lawyers, and generally digs his heels in the sand, hoping that the other lawyers in the case will drop the case or settle for a low amount because he is so obnoxious. Generally other lawyers have to work around him or assume more of the settlement just to get the case resolved. When I have had the rare instance of dealing with a bully, I make certain that other lawyers are aware of this lawyer’s tactics and demeanor.

 

The Inexperienced Lawyer.  I sometimes call these lawyers “baby lawyers”, because although they tend to have less than five years of legal experience, regardless of their actual age, they do not have the experience which can give them the confidence of realizing that their client looks upon them for legal advice, and in fact, that is their responsibility, to give their client their opinion or legal advice.  Often baby lawyers act as mouthpieces for their clients, do exactly what their clients want them to do even if they inwardly disagree with their clients, and are often afraid to disagree with their clients in the event the client is displeased and terminates their services or their firm’s services, in which case the lawyer may often lose his job. It is not unusual that a lawyer who does not properly advise his client often costs his client much more in the long-run. An experienced lawyer usually understands that a case that is settled can be far less expensive than a case that is lost, or even if not lost, that the litigation expenses often exceed the amount a case can be settled for.

 

The Wimp.  I feel that lawyers have a professional responsibility to their clients, opposing counsel, and the court system to guide clients through the legal process, because they are familiar with the process and their clients are generally not. Even if their client has been involved with the legal system, it may have been or be in a different area of the law, in a different court, etc.  Many people have complained to me that they have not been pleased with their former lawyers because they just “stood there” in court. Although I try and explain that sometimes a lawyer should not argue or engage with a hostile opposing counsel, or even a judge, and that just because the client wants their lawyer to do exactly what the client wants, it may disadvantage them in the long run.  On the other hand, I have been witness to ineffective lawyers who don’t even appear to be present in the room, and are not familiar with their client’s case, or seem to be counting the minutes when they can leave.

 

So, the moral of this blog is that lawyers can usually only control themselves, and the manner in which a case proceeds greatly depends on who is on the other side of a case.  Based on the axiom “you can draw more flies with honey than vinegar” I try and preserve my reputation by putting forth my most professional and charming demeanor as a lawyer, at least initially. My good reputation has many times resulted in good results in a prompt fashion, as opposing lawyers provide me with respect, and provide my client’s case with respect, and we spend time discussing the merits of the case, rather than who can be the nastiest troublemaker.

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