Having vividly expressed my thoughts, from the attorneys’ perspective, on lawyers bidding for work, there remains a surprisingly large hole in the discussion about why it’s no good for potential clients as well. 

This glaring omission became clear after reading an article in the Wall Street Journal, where I was asked why this wasn’t good for clients if bad for lawyers.  I explained, but it never made it to paper.  I would have expected lawyers to innately appreciate the problems, while non-lawyers only become aware of issues after a problems hits them between the eyes.

The plus side is the potential (not necessarily the reality, even assuming everything is on the up and up) of finding an affordable attorney.  It’s just as likely that an honest lawyer is going to quote a legitimate price for his services, no different than he would under any other circumstances.  The only difference is that he comes unrecommended, and the client is buying a pig in a poke at market value.

The other pluses?  None.

The negatives, however, are more lengthy.

1.  Gut spilling:  A client posts about his litigation online.  This is available to be seen by any lawyer, including opposing counsel.  This reveals information, may constitute a statement against penal or pecuniary interest, may even be an admission.  Clients are funny this way.  As they are uncounseled when the write up their request, they say all sorts of stuff that should never be put in writing, constitute damaging admissions (since they have no idea what constitutes a damaging admission) and bare their souls for all the legal world to see. 

Maybe it’s just poorly expressed, because clients aren’t schooled in the art of legal spin, or maybe its client hyperbole since most clients are absolutely certain that their reasoning is overwhelmingly persuasive and there can be no reasonable disagreement with their righteousness, but it’s now in writing on the internet.  Will a discount lawyer be able to save a client from himself?

2. Mistake:  Clients frequently present their needs as a slam dunk, sure thing, when it’s not. They relate the situation in a way that argues their position rather than state’s the problem, causing the honest attorney to be mislead and the dishonest attorney to see opportunity.  In fairness, any competent lawyer realizes that a client can’t, and shouldn’t, be expected to understand and anticipate the myriad problems and issues that could arise or require counsel, but then the nature of the scheme is that the lawyer bids on the client’s request.  There’s no point in bidding on what the client doesn’t yet realize he needs.

After they’ve gotten into the case, there’s the “aha” moment when the reality becomes clear, and the attorney explains that the deal he bid on isn’t the deal he’s being asked to litigate.  The client unwittingly changed the rules of the game, and the lawyer can no longer be held to his bid. Cha-ching.

3.  Change of Plans:  Clients rarely have a firm grasp on what they’re getting into before seeking to commence litigation, and usually think it’s all going to go away, or be completed, quickly and painlessly, because they’re right and God is on their side. Once they realize that the attorney can’t complete the representation in, oh, 3-4 hours, or the other side didn’t collapse into a puddle as soon as they lawyered up,  they find themselves in the middle of contentious, years-long litigation, without the will or wherewithal to complete it.  So they are now stuck in the middle of a nasty battle, all money gone and no ability to pay either the lawyer or the requisite experts (that’s right, sometimes you need witnesses and evidence, and that costs money too) to win or lose.  Yes, sometimes you lose, even after paying money to a lawyer.  Bummer.

4.  Commodities:  Some work, such as simple wills or incorporations, are generally considered commodities, basically fill in the blank work that can be done by pretty much anybody at a fixed price.  While this is true under some circumstances, which circumstances they are remains to be determined.  Finding out that a client needed more than a simple will, or has ex-wife problems, kid problems, after death is a little too late.  There is no legal work that can be truly handled as a commodity, though poor attorneys may disagree. 

There are always issues, questions, personalization, that must be asked and understood before an attorney commits to do the work a client requests.  Clients won’t realize it, which is why there are lawyers, but if the lawyers are doing only as the client directs (and the work for which they bid), then a large part of what lawyers are there to provide is lost.  Of course, this won’t present a problem until something goes wrong, at which point it can be a diaster.

5.  Fungibility: Lawyers are not fungible, meaning that any lawyer is not the same as any other.  Clients won’t know if the lawyer is any good, has any experience, has the necessary competence.  They can ask, and the lawyer can assure them that he’s the real McCoy.  How would the client know?  Most lawyers don’t think they’re incompetent, so let’s assume they aren’t lying.  Just mistaken.  How is a client to distinguish on the internet between a lawyer who can competently handle a matter from one who can’t?  Beats me.

Bidding is being touted as a wonderful way for new lawyers to generate some income because, well, they need income.  What they lack are clients, experience and skills, but they are told that it’s completely appropriate to describe themselves as experience, skillful and caring because if they don’t, nobody will ever hire them.  It’s not that they want to deceive people per se, but that they want to pay off their student loans. Is this what you’re looking for? 

6.  Jurisdiction:  So the lawyer is absolutely brilliant at cranking out wills in New York.  But you’re in North Dakota.  Same thing? I dunno, and neither do you.  When will you find out if the lawyer made a fatal mistake under the law of your state?  You won’t because you’ll be dead, and it’s too late to do anything about it anyway. Tough break for your heirs. Add into the the unauthorized practice of law problem, as lawyers are licensed by a particular jurisdiction to practice law, but they cannot practice law in other states.  Silly? Perhaps, but that’s the law. Do you want to hire a lawyer who breaks the law, even if it seems silly? 

7. Recourse: So you’ve found the perfect lawyer at the perfect price, but after a bit, things don’t seem nearly as perfect as they did on day one.  What are you going to do about it when your lawyer is in some other state far away from you?  Do you, North Dakotan, who already placed affordability first, want to go to California to go after your lawyer? Do you plan to hire a California lawyer to sue your other California lawyer.  Where are you going to find this new lawyer, on eBay?  How did that work out for you the last time your tried it.

Max Kennerly, who has demonstrated a deep concern for the welfare of the poor and downtrodden (and never hesitates to rip me a new one whenever I fail to show sufficient sensitivity, nonetheless decries this scheme:

Who wants half-baked advice on an investment in a startup company, or, for that matter, a will, or a lease? It’s like asking who wants an operation from the discount surgeon. There’s a market for good legal representation on all of these matters; anyone unwilling to pay those market fees is probably well-advised just doing it themselves. It beats paying half-price for no-value.

Do consumers want half-baked advice?  Are they seeking to pay less and take a shot in the dark as to the quality, propriety and sufficiency of services they receive?  It’s reminiscent of the old joke, that the food was awful and there wasn’t enough of it.  Does the client understand that he may have the possibility of paying less, but receiving less?  What is the value of ineffective assistance of counsel?

And these are the negatives with the honest lawyers.  Lawyers who are less than honest, or inclined to take advantage of clients, present another whole panoply of problems.  And there is a very strong likelihood that lawyers whose ethics and competence are sketchy will find comfort bidding on work on the internet to make up for their inability to maintain a legitimate practice and because, well, the internet makes it so darn easy to scam people.

While these issues, and more, are all painfully obvious to some lawyers, it appears that they aren’t at all obvious to many others, including lawyers who ought to know better. Maybe they don’t want to know better. Maybe thinking makes their head hurt.  But for lawyers who don’t believe that the reason clients exist is to provide a source of revenue to lawyers who can’t seem to find it on their own, these are some of the problems about which clients should be aware.  That proponents of this scheme conveniently ignore, or just won’t think hard enough to realize, the potential problems doesn’t mean the problems don’t exist or go away. 

We can all appreciate the need to provide affordable legal services to people who can’t afford the going rate, but that doesn’t lead to the inexorable conclusion that every scheme that offers the potential of savings is a good idea.  This isn’t.  Not for lawyers. Not for clients.  Not for anyone.

It ultimately leads to one question that every client needs to ask himself before trying a lowbid scheme to obtain legal services: When you find out afterward that the discount service you received failed to satisfy your needs, what will you do then?