At The Puddle, Sam Glover takes up the annual cause of explaining to the groundlings why lawyers have to charge such high fees. Personally, I’m just happy to see an occasional new post at The Puddle, because its vapid rehashes of worthless old posts left a huge void for those lawyers whose depth of understanding was maxed out by kitten pictures. Where were they going to learn about the law?
It’s not that the issue of legal fees, and its corollary problem of access to justice, isn’t a perennial fav of blogs, always good for clickbait, that purport to teach lawyers how to practice (and what’s the best scanner to buy), but this time Sam goes in a somewhat unusual direction, making his post discussion-worthy.
I don’t know if the public really appreciates what a lawyer agrees to do for her clients when we sign a retainer. In fact, I think some lawyers need to be reminded. It’s true that many clients just want to get out of jail or a contract or for their insurance company to pay up. But in order to do that, lawyers have [to] commit to much more.
Are we really just like Mother Theresa in a pinstripe suit?
You may have heard the story about the lawyer who abandoned his Ferrari in rising flood waters so he could make it to a hearing. Everyone was amazed except lawyers, who were like duh. Missing a hearing is not an option. As the lawyer who owned that Ferrari said, “You can’t let the client down, no matter what personal exigencies you might have.”
Mother Teresa doesn’t drive a Ferrari. This may not have been the best example of lawyers being great humanitarians. Besides, the Ferrari was certainly insured, and once under water, it’s really not much good anymore. At least that’s what a friend told me. And one lawyer who abandons his supercar isn’t really a great data point from which to extrapolate to all lawyers. I bet there are a ton of lawyers who would have just called the court on their top of the line smartphone and let the clerk know he’d be late.
But then Sam makes a good point, that the effort of so many to analogize a profession to commerce is misguided.
This is why comparing non-legal products and services like Apple and Uber and Facebook to legal services doesn’t really work. Nobody would expect an Uber driver to absorb the cost of a parking ticket just so she can pick you up where you want. I’ve known plenty of lawyers who parked illegally to be on time for a hearing and eaten the ticket as a cost of doing business. Nobody expects an iPhone to absorb your stress and nobody thinks Facebook will really keep your secrets. Lawyers aren’t like tech companies, and they probably can’t be.
I’ve known plenty of lawyers who parked illegally too. Mostly because they’re lazy and don’t want to spend their time finding a legal parking spot. But still, his point is correct, lawyers aren’t widgets, but the reasoning isn’t merely because we lose sleep at night worrying about our clients’ fortunes.
So as long as that high level of obligation is what you get for your legal fee, the fee can only drop so much. To reduce the cost of legal services past a certain point, you probably have to reduce the lawyer’s obligation to the client.
This makes no sense at all. There is no direct expense for caring, for putting the client first, for planning ahead so you make it to court without sacrificing your Ferrari. Yes, we do, or more correctly, should do all these things, but not because it’s an out-of-pocket cost that needs to be subsumed in our fees. And if our fees were reduced, we wouldn’t stop caring. There is simply no connection between adhering to our duty to zealously represent our clients and the numbers on our bill.
There is a laundry list of hard costs that explain, to some extent, what lawyers charge. We have offices, with all the bells and whistles needed to do lawyerly things. That costs money. We have law school tuition, plus years of opportunity costs, that get amortized over our practice. And we have the reasonable expectation, having gone through all it takes to both become a lawyer, and become a competent lawyer, to make a decent living. There is no shame in expecting to feed your family, live in a nice house and go on the occasional vacation, on a lawyer’s income.
Much as I agree with Sam that the virtues of which he speaks are things that lawyer should, and I would argue must, do, it’s not because we get a quid pro quo for ditching the Ferrari. It’s because we’re lawyers, and this is what comes with the responsibility of people trusting us with their lives. Whether we are well paid, or not paid at all, our duty as lawyers does not change.
If the cost of hiring lawyers is really too great (and I am not convinced that is true across the board), we need other solutions, and they might have to include reducing lawyers’ professional obligations. So, just so we’re clear, when we talk about lowering the cost of legal services, what we are talking about is fundamentally changing what it means for a lawyer to represent a client.
Sam neglects to spell out what “reducing lawyers’ professional obligations” means, but this sounds remarkably like a threat to me. There cannot be a reduction in our obligations unless we cease to be lawyers, cease to be professionals. Of the various pieces of those words, foremost is putting the client’s interest ahead of our own. If we fail to do that, we are no longer lawyers, no longer professionals.
So is the message, pay us or we’re out of here? That may ultimately be the case, not because we’re a bunch of great humanitarians, but because of this basic rule: We become lawyers to serve our clients. We go to work every morning to earn a living. Without both, lawyers won’t survive, and if you think the system sucks now, try it without lawyers.
As for Toronto gearhead lawyer Howard Levitt, what kind of moron drives his Ferrari to the airport in a storm? That’s when you take the four-wheel drive SUV. Jeez.