Advanced Funding The article in the April 1 News headlined “Board sets out advance funding guidelines” addresses Professional Ethics Opinion 00-3, which was approved by Bar Board of Governors on March 15. The opinion purports to afford “guidance” concerning the provision of nonrecourse advance funding and other financial assistance to personal injury claimants. The opinion refers to the Supreme Court of Florida’s decision in The Florida Bar Re Amendment to the Rules Regulating The Florida Bar- Rule 4-1.8(e), 635 So. 2d 968 (Fla S.Ct. Case No. 81,527, April 21, 1994). In that decision, the court, at the urging of the Bar, rejected my petition (endorsed by 49 other members of The Florida Bar) to amend Rule 4-1.8(e). The court’s opinion did not set out the text of my proposed amendment to that rule, which was as follows:“A lawyer should not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and (3) A lawyer representing a claimant for personal injury damages may serve as a trustee for his or her client only upon compliance with the following procedures and conditions:(A) In consideration of the client’s receipt of the proceeds of a loan from a lender which is subject to the provisions of Chapter 516, Florida Statutes, the client executes and delivers to the lender an interest-bearing promissory note;(B) In addition to the execution and delivery to the lender of an interest-bearing promissory note, the client executes a written trust declaration naming his or her lawyer as trustee for the lender’s benefit;(C) The lawyer signs the trust declaration, thereby accepting responsibility for repayment to the lender of the principal amount of the loan and accrued interest solely out of the proceeds of the client’s claim for personal injury damages;(D) The lawyer receives nothing of value, from any source, for his or her service as trustee;(E) The lawyer advances none of his or her funds, either directly or indirectly, to the lender;(F) The ownership and management of the lender is completely independent of the lawyer;(G) In assuming the duties of trustee for the lender’s benefit, the lawyer complies with Rule 4-1.8(a). Rules Regulating The Florida Bar; and(H) The lawyer renders no evaluations or recommendations to the lender concerning the merits of his or her claim.”I invite the members of The Florida Bar to compare the “guidance” provided by the opinion with my proposed amendment to Rule 4-1.8(e). Lawrence R. Metsch Miami Public Perception Recently hundreds of thousands of Floridians saw a Sunday St. Petersburg Times front-page headline story about how a few South Florida lawyers are traveling around the state filing Americans with Disabilities Act lawsuits against small businesses without warning and collecting cash settlements. The businesses pay because they can’t afford to fight them, and there is little concern by the attorneys whether the supposed violations were ever fixed.Meanwhile, nearly every Florida family that loses a loved one meets an attorney who demands a percentage of the entire estate, plus an hourly fee, to file a few papers which confirm the passing of assets.Then there are the class action lawsuit notices we all receive in the mail in which consumers get cents-off coupons for buying more products from the offenders while the attorneys collect millions in fees.Does anyone in The Florida Bar really think that giving each other pro bono awards or running “Dignity in Law” publicity ads will accomplish anything when these are the kinds of experiences people have with the legal system? A legal system that transfers millions of dollars to attorneys but little to anyone else is corrupt. We can’t possibly improve the public perception of the legal profession.The perception that the system is corrupt is correct. To improve the image of lawyers, we need to change the legal system itself.Here are some modest proposals to improve the image of lawyers by reforming the legal system:• Create an ethical rule that 90 percent of all attorney fees paid in class action and ADA-type litigation be paid to the Florida Bar Foundation to provide legal services to the poor. (This couldn’t possibly deter such suits since we know so many lawyers are civic-minded.)• Require that 80 percent of all punitive damages be paid to the court system for judicial salaries and infrastructure. Plaintiffs are already paid their complete actual damages. Punitives, as a penalty, should benefit society, not one party.• Change the Florida Probate Rules to allow all uncontested estates to be settled by the heirs without attorneys.There are many other changes like this that would improve not just the image of lawyers, but our entire legal system. The Bar should stop fooling itself with worthless gestures. Mark Warda Clearwater Billing I suspect we all have our “keeper” drawer where we collect particularly interesting writings.In mine, for example, is the “.. . morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive. . . ” Cardozo quote from Meinhardt v. Salmon, 249 N.Y. 458, 464, and the quote from Flagship Nat. Bank of Miami v. King, 418 So. 2d 275, 278, “Since the object of judicial decision-making in general is likewise to reach results which conform to the requirements of common sense and reasonableness,. . . ” which I use to argue my client’s position when I can’t find any authority in my favor. The drawer contains an unpublished “Survey of [Probate] Fees” (1981) prepared by Judge Harold Clark, a renowned, now-deceased probate judge from Duval County, and the 1969 Broward County Bar Association Minimum Fee Schedule.I have added a copy of Alan Greer’s article, “Billing: Our profession’s not-so-hidden shame” (April 1 News ) to be similarly preserved in my personal “time capsule.” This article deserves your attention.Alan’s observations about the 2,000-2,500 hour annual billing requirements, and the dilemma of dishonesty it imposes on associates (and partners) are on target. This is indeed our profession’s “not-so-hidden shame.”Most of us ascribe to the statement, “Most lawyers, like most people, are honest.” Honest lawyers have financial requirements we believe are reasonable; however, the honest way to meet those requirements is by honestly billing the clients for the services performed.I don’t believe that a “dishonest” bill necessarily “overbills” the client for the services performed; but it does misrepresent the scope of the services. If the amount of the bill is truly reasonable for the services furnished (otherwise it is larcenous and ethics is not an issue), the ethical solution is for the firm to be honest and brave and simply raise its rates to a level where the associates, partners, and firm can honestly report the actual professional time expended on the client’s behalf. (Insurance defense lawyers take note.) Bill to reflect reality rather than fantasy.This places the firm in a dilemma. Will judges award the higher rates for honest time; will clients migrate to firms which dishonestly bill away from firms which honestly bill, even if the bottom line of both bills is the same? Those two potential problems will go away if the good, top-line firms make the decision to begin reality billing.I practice with two of my sons. When they came to work as associates, I compensated them for the first two years based on the amount of hours they billed at a direct rate per billable hour. There was not a minimum billing requirement. This taught them the direct relationship between working and being financially rewarded on the one hand, and how to balance the value of their obligations to their family (and my grandchildren), on the other. However, “padding” the time was never permitted.Another way to be dishonest with a client is to provide less-than-quality legal services even if it is charged at lower prices.Another of my “keeper drawer-time capsule” items is an article entitled “Long After the Price is Forgotten — Quality is What Lingers in Clients’ Minds” written by James E. Brill, an insightful Texas lawyer, and published in the September 1992 ABA Journal. This is another article which deserves your attention.Jim tells the allegory of a client-grocer who sold bananas at 30 cents per pound. He began to take out the bruised bananas and put the culls on a separate table, identifying them as “seconds,” and priced them at 10 cents per pound. His customers began complaining about the quality of the seconds and when a customer complained, the grocer replaced the seconds with the premium product, but still sold it at the seconds price. When he found he was losing money on each sale, he still culled the seconds but discarded them and only sold the premium product at the premium price and his customers stopped complaining. The message was that “The quality is remembered long after the price is forgotten.”Mr. Brill tells us that this also applies to the practice of law. He observes “Michelangelo could have used a roller on the Sistine Chapel, but the world would have been shortchanged if he had.”Following the Brill lead, in my firm, we provide our clients with a statement of our firm’s philosophy. It is entitled “Dedicated to Excellence.” In part, it says, “If you have arrived in this office with your most important consideration in your legal representation being its cost, then you have accidentally wandered into the wrong office. We do not mean to suggest that we are unconcerned with the cost to our clients of the legal services we provide. It is, in our view, the third most important consideration.” We go on to explain that the first two are quality of service and personal attention to the client.In those matters we bill on professional time expended, our hourly rates are higher than most of our competitors. However, we make absolutely certain that the client gets an accurate count of the hours and receives the premium bananas.It is not necessary to sacrifice professionalism to profit, or vice versa. Thanks for your article, Alan. Rohan Kelley Ft. Lauderdale First Amendment I write in response to the April 15 letter in the News from the chair of the Public Interest Law Section’s First Amendment Law Committee criticizing an earlier writer who objected to a Bar seminar that she felt was oriented to educating the adult entertainment industry. He characterized her opinion as “a moralistic, knee-jerk reaction. . . uncharacteristic of educated members” of the Bar. He urged that “[a]s lawyers, our mission is not to judge the content of expression, but to advocate for the right of expression.”I disagree with his suggestion that lawyers should not judge the content of expression. When we took the Oath of Admission to The Florida Bar, we did not lay aside our personal moral and ethical beliefs. As lawyers we remain individuals, and every day we judge the content of our own expression and censor our thoughts and speech. On occasion when we fail to do so (in court or elsewhere), we may suffer the consequences for that lapse. Personally, and as lawyers, we may also choose to urge as acceptable those standards of expression that do not press the boundaries of the “controversial, even despicable speech.” In fact I hope that collectively we are all striving for a higher level of civility in our professional and personal relationships.The chair closed his criticism of the writer by finding it “ironic that her opinion suggests a position that is tantamount to censorship.” I find the greater irony in a defender of First Amendment expression resorting to condemnation of an opposing viewpoint by applying labels like “moralistic,” “knee-jerk,” and uneducated in order to denigrate an individual who was simply expressing her obviously heartfelt opinion. Steven C. Hartsell Ft. Myers May 1, 2002 Letters May 1, 2002 Regular News
PORT Mourant Training Centre-1 (PMTC-1) and Port Mourant females dominated the Berbice Volleyball Association’s (BVA) Inter-Club one-day tournament which was played at the PMTC’s Hostel compound, Corentyne, Berbice last Sunday.Four teams contested the male category while three teams participated in the female category. At the end, PMTC-1 males and Port Mourant females emerged victorious in the respective categories.After a round-robin play-off in both categories, PMTC-1 and PMTC-2 came out as the top teams in the male category.The two teams then engaged each other in a play-off to decide the winning team and PMTC-1 came from behind to win 2-1 after three intensive sets. They had lost the first set at 14-25, but rebounded to win the other two sets 25-18, 15-11.The other two teams in this category were Corriverton Jets and GUYSUCO Training Centre/Port Mourant.In the female category, Port Mourant females defeated Corriverton Jets 30-18 in the final to claim the top prize.The other female team who contested the tournament were the Falcons of Orealla.