A BITTER WORLD

In the aftermath of every seminar I present at, I receive an evaluation of my presentation. Although most of the comments are favorable, there are sometimes one or two comments that are not. Some comments just contain information, as does the following one which is the subject matter of this blog. One of the comments for a seminar I presented last November was “Faye comes across as bitter. I wish her happiness.” I was the last speaker of that two-day seminar, and my topic was ethics in employment law. As this topic had been touched upon by several of the earlier presenters, I decided to focus on the real world of employment law cases, and the ethics, and sometimes the lack of ethics, of lawyers in these types of cases. Apparently my presentation revealed my unhappiness with some of the ethical issues I have encountered in my practice.

 

Do I consider myself to be bitter? No. The adversarial process is typically disappointing for both employees and employers, who have different perspectives about employment relationships, discipline, and terminations. Often, this causes employees and employers to become bitter during litigation.  However, I feel that I am often more disappointed than bitter, because I see the negative side of human nature.  In the field of employment law, there is never one totally correct and one totally incorrect side. Lawyers, for both employees and employers, don’t always receive the complete story from their clients, who frequently skew the facts in their favor, so that a lawyer will accept their case. Unfortunately, the true facts of a case may appear late in the process of representation, which is frustrating and disappointing to a lawyer who has advocated his/her client’s case without receiving a complete version of the facts.

 

The legal process itself is fraught with strife. Even U.S. Supreme Court nominee Neil Gorsuch, said in a talk he gave to a group in 2010 that “not long ago, we used to have trials without discovery. Now we have discovery without trials.” He was referring to the discovery process in litigation, which absorbs most of the efforts of a legal matter, and creates most of the expense. The discovery process, which was intended to facilitate the exchange of information between counsel and to promote early settlement, has become a Frankenstein living a life of its own. Because of the time and cost associated with discovery, this process has led to many parties being priced out of court. Often, those with the most available resources can prevail by extending the discovery process to the point where the average person cannot afford to continue to participate.

 

Bitterness and disappointment are not limited to the legal process. Certainly our current political climate, and the most recent Presidential election, has brought out the worst in human nature, with friends and family taking opposing political stances.  In my opinion, with the exception of the people who live in Norway, considered the happiest nation in the world, most of us are unhappy about something. This year, America dropped one place on the list of happiest nations, and is now the 14th happiest nation in the world.  So in America, this land of freedom and opportunity, something is obviously making us unhappy.

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BENJAMIN FRANKLIN’S 7 GREAT VIRTUES

Recently I walked by a parking garage in Philadelphia and noticed something that made me smile on a gloomy winter day. A sign announced that the floors of the garage were named after Benjamin Franklin’s 7 personal virtues that he created to define his life, and no doubt hoped would be followed by his fellow American citizens – an aversion to tyranny, compromise, freedom of the press, humility, humor, idealism in foreign policy, and tolerance.  Even more telling, I noticed the sign shortly after our country had concluded the most vicious Presidential election in American history (2016), when the nerves of all citizens, both winners and losers in the election, were still raw due to the brutal process of this particular election.

 

Although I probably had read about the virtues during my school years, they seemed new, fresh, and particularly relevant to our current lives, so I decided to read about Franklin’s thought process in selecting them. Franklin was one of the, if the not the most, interesting and remarkable of America’s founding fathers. He was a man of many talents, skills, interests and knowledge. I will discuss how the legal field impacts on those virtues.

 

An Aversion to Tyranny– In 1755 when Franklin opposed taxes imposed from England, and most of his fellow colonists did not oppose them, he wrote: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The law presents the only legitimate avenue in which ordinary citizens, within the means at their disposal, can attempt to create change. Of course, citizens can lobby their elected representatives or influence the press to publicize their viewpoints, but this can be a cumbersome and lengthy process.  Although the legal process has its own vagaries and expenses, it can potentially allow even a single person to create significant changes based on a court’s decision at some point in the legal process.

 

Compromise– The legal profession is based on compromise.  That is not to say that lawyers do not aggressively pursue their clients’ interest, but in the long run, the legal process would collapse if compromise was not engaged in since over 90% of all matters are usually resolved during the process before or during litigation. Not only is compromise a practical approach, but it encompasses engaging in some of the other virtues mentioned here.

 

Freedom of the Press– The flow of information and ideas through a free press has long been a hallmark of the legal process. These days the process is more transparent than ever before. Most courts engage in the electronic process, which allows anyone to view the progress of a case, review the documents filed with the court and by the court in that case, and to review the court’s opinion if it is published. Although certain politicians and political movements have an agenda of limiting free press these days, on the other hand, everyone seems to have a viewpoint these days, and feels free to promote it easily through social or print media. It does not appear likely that ideas will stop flowing and opinions, although chilled perhaps, will stop being promoted in the future.

 

Humility– I don’t think this word is in most lawyers’ vocabularies. It is the nature of the legal profession to favorably compare ourselves with other lawyers.  We are encouraged to market and advertise ourselves as being the best of the best. We are encouraged to profile our superlawyer and pre-eminent status through all forms of media. Unfortunately, some of the least skilled lawyers are the ones who resort to the most puffery. Also, unfortunately, people tend to believe such puffery until proven to them otherwise. I don’t know if a lack of humility is necessarily bad in the field of law, so we will live with it.

Humor– Jokes about lawyers appear endless. Although law is a serious profession, the situations that ordinary people often find themselves in can be hilarious.  Often the decisions handed down in the legal process can be funny. The actions of lawyers, judges, jurors, and lawyers can be humorous. Unfortunately, the day to day lives of lawyers are usually based on serious situations involving individuals clients, companies, and the government. I believe lawyers try to do the best they can with the situations handed to them, which often leaves them as the brunt of jokes. We can’t all be stand- up comedians, and if you need a lawyer you wouldn’t consult a clown, so it is what it is.

 

Idealism in Foreign Policy–  I recently read an article about the Kansas 40 member  Senate not having a single lawyer serving in it.  Although many people may applaud this absence of a legal mind, this absence caused a problem because of a statutory requirement that required a lawyer. It surprised me that there were no elected lawyers in that Senate, because politics and law certainly have gone hand in hand throughout American history. Not to say that other professionals do not have ideals and ethics, but I think lawyers have the unique training and perspective of trying to further the common good through their profession, represent their interests intelligently and act ethically while doing so.

 

Tolerance– America has struggled through and continues to work on the concept of tolerance. Many of the civil rights laws were not enacted until nearly 200 years after America’s creation, and the establishment and consideration and determination of those laws is an ongoing process. Tolerance is under great attack these days, and although we live in a diverse country, that diversity is not equally spread or appreciated throughout our country. It is up to lawyers to make certain that tolerance is adhered to and honored, even in the worst of times.

 

Tolerance encompasses the other 6 virtues which were endorsed by Franklin, and tolerance is what makes America great and continues to make America great in these turbulent times and in this turbulent world. Let it reign forever, and let lawyers be its crowning glory!

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THE NEW ATTORNEY-CLIENT RELATIONSHIP, PART II

In my previous blog post (see here) I wrote about an article in the November 1, 2016 Ethics Forum column in the Pennsylvania Law Weekly written by Samuel C. Stretton, a local lawyer, which discusses how the attorney-client relationship has lost the loyalty and trust that existed about 40-50 years ago. I will continue with Mr. Stretton’s comments, and my responses thereto.

 

Comment: “One has to practice defensive law. One’s file has to be documented and there has to be perhaps more communication just to protect the lawyers from future claims. Rare is the lawyer who receives a note of appreciation from a former client.”

 

Response:  I agree that lawyers have to practice defensive law.  In the course of one’s case a lawyer must deal with their client, with opposing counsel, with judges, with local bar associations, and with licensing and disciplinary entities. Mr. Stretton feels that clients now expect perfection from their lawyers, and have unreasonable time expectations of when their work will be performed.  Further, clients who do not understand that lawyers often serve at the vagaries, schedules and mercies of the court system, feel that their lawyers should respond to them on short notice, each time they call, write, e-mail or text, and that these responses should occur not only during the typical work day, but during evenings, weekends, holidays and vacations.

 

As a result, clients often make unreasonable demands and maintain expectations that lawyers must deal with, which in addition to the nature of law the way it is currently practiced, can take their tolls on lawyers, and can create physical ailments, emotional distress, and psychological problems.  The legal profession consistently has the highest numbers professionals who have alcohol, depression, and addiction issues, and their numbers are increasing yearly.

 

Comments: “It’s expensive to retain an attorney nowadays. It’s a hard concept for a client to understand…The need to charge realistic fees, which are difficult for many people to pay, obviously creates a further tension in the relationship”.

 

Response:  I agree. Years ago there were generally two types of fee arrangements by which a private lawyer could get paid. The first was via an hourly rate, and the second was via a contingency or percentage fee basis. However, over the years the lines have sometimes become blurred between the two forms of payment, certain laws have been passed which permit a lawyer to request payment if they prevail in certain types of cases from the opposing party, many people receive discounts on legal services through the workplace, many people purchase legal service plans, and other people can receive some services for free or a reduced rate due to their financial situation. This broadening of the legal payment landscape has led to a large amount of confusion on behalf of potential clients who do not understand which types of cases are normally billed hourly and which are not, what the nature of their discounted services entitle them to, etc.

 

Balancing the changing payment landscape with the drastically increased costs of maintaining a law office is often difficult. Rent, utilities, communications, technology, advertising, marketing and other costs have created large overhead for law offices. These increases and expansion of required services, in turn, has created the need to increase fees, and lawyers expect that a client will pay those fees, and not stop paying over time, after they have asked the lawyer to provide services. Lawyers want to devote their time to representing clients, and not arguing with their clients as to when they will receive payment. Clients also need to understand that sometimes they will need a lawyer, and ignoring the legal process because they don’t want to pay a lawyer, is a very poor and expensive decision for the client in the long-run.

 

The upside of the changing relationship between lawyers and clients will most likely reflect the manner in which law is practiced in the future. Law school entrants are dropping, when life is becoming more complex, and more situations arise when people will need a lawyer. College graduates these days seek a profession where they can make a difference, earn a good living, enhance society, and be appreciated and respected. If they do not view law as providing them with those opportunities, they will seek alternate professions, and although some people think that there are too many lawyers, one really cannot do without them in our complex world.

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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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