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Is Quality Possible for Law?

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I won’t bore you with the iPhone’s various virtues, which you can read about all over the place. But I’ll say this, the iPhone is an exceptional, quality tech product, probably the best one I have ever bought.

Now quality, in the modern sense, is not simply the absence of defects. Instead, it reflects the user’s total experience with the product or service, including the costs, the ongoing service, and more. Renting a car from Hertz is a high-quality experience because they usually get your name on the board and you can get your vehicle quickly–it’s the same Ford that’s offered by other car rental companies. The services of your cable company usually are not a quality experience, considering you’re put on hold for twenty minutes in order to schedule an appointment that keeps you waiting for the cable guy for four hours.

So, is it possible to create the iPhone of law? You may respond, “our firm already is the iPhone of law.” Maybe a few of you are. But we recently surveyed in-house counsel. Twice as many said their company delivered higher quality to their customers than their law firms delivered to them. Again, maybe there are a few of you out there, a small segment.

Law traditionally has defined quality as most professional services define it–as a description of the provider. Ask most lawyers what quality is, and the answer will be a combination of a Potter Stewart-esque “we know it when we see it,” plus a detailing of their credentials, level of effort, absence of defects, and their anticipation of low probability events. Lawyers will sometimes talk about quality in terms of outcomes, but usually only when the outcome is good. When the case is lost, the deal goes south, or the derivatives go bust, lawyers distance themselves from responsibility even though that broader success is almost certainly what the client has in mind by quality.
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My 2 cents on Net Neutrality …

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I recently got in a discussion with someone about net neutrality at which point I made the following argument:

If I go to Google to perform a search and Google sends me the results; Google had to pay for the bandwidth they used to send me the search results, and I have to pay for my bandwidth in order to receive those same search results. My observation is simply that the same information got charge twice; once at the sending end, and once at the receiving end. Bandwidth had to be used to send it, which Google paid for; and bandwidth had to be used to receive it, which I paid for. That is currently the normal way information is charged on the internet, every bit or byte,which ever unit you prefer, is charged twice.

Now those against Net Neutrality are proposing that a third charge be add to every bit or byte in transit between the sender and the receiver, and who will pay it is unclear. But, what will we gain if someone does pay it? It has been argued that the money is need in order to build out the internet further, and with greater capacity. But, what assurances does anyone have that the money will be put to that purpose. My DSL provider currently does not provide me with the all bandwidth I am paying for, in fact Americans have horrible speeds compared to citizens of other country. So, how can I trust someone to give me what I am bargaining for, when I don’t think I’m getting now?

Current as I am writing this article there is a case in Federal court Verizon v. Vonage, supposedly centering around patent infringement. But, I think it has to more with the threat Vonage possess to Verizon monopoly on telephone calls. If Net Neutrality were to disappear then Verizon could just charge Vonage or Vonage customers for using Vonage’s service on Verizon’s DSL lines. While simultaneously offering a Verizon branded VOIP service which would not be subject to the same charge.

The rebuttal would be that Vonage’s volume of data is so much greater that they should be made to pay because they are getting the benefit of the lines. But, there is a fallacy with that argument and that is that the benefit is only one way, the owner of the dsl line who has put it to this use, VOIP, is also receiving a benefit. I believe that the purchaser of bandwidth has the right to use it however they chose. This third charge if allowed would in effect dictated consumer consumption away from most successful, most useful, and toward the less successful, less useful. It would punish merit, and reward the inept, over all causing the market to become less efficient.

N.Y. Lawyer Misconduct Fund Braces for Surge

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As a law student who has taken, and was required to take, a course in Legal Ethics this story, that I came across, basically provided the justification for that requirement. Just remember folks, the lawyers who follow the rules are never in the papers, and honesty isn’t just a legal obligation, but also good for business too!


Law.com – N.Y. Lawyer Misconduct Fund Braces for Surge


N.Y. Lawyer Misconduct Fund Braces for Surge

‘Catastrophic losses’ in single case cause concernJoel StashenkoNew York Law Journal
April 16, 2007

Dishonest attorneys prompted the awarding of $7.1 million in 2006 from the New York Lawyers’ Fund for Client Protection, which warned Thursday that the fund is likely to start seeing claims from the largest case of lawyer theft in its 25-year history.

Last year, the fund paid out $1 million less than the $8.1 million awarded in 2005. The average awarded annually over the last five years has been just over $6.3 million. (The report is available at www.nylawfund.org.)

See the 2006 Annual Report and highlights from the report.

Officials say the fund’s finances are “very strong,” but claims for reimbursement from clients defrauded by Andrew F. Capoccia and two attorneys working for him in his debt-reduction practice could total $5 million to $6 million alone, although the claims might be spread over more than one year, said Timothy J. O’Sullivan, executive director and counsel to the fund. Several hundred, and possibly thousands of clients, may seek help once federal authorities distribute restitution payments, he said in an interview Thursday.
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THEFTS FROM ESCROW

While trying to anticipate a new challenge, the fund said an old problem — the theft of money kept in escrow by lawyers for downstate residential property purchases — continues to plague the system, though to a somewhat lesser degree in 2006 than in 2005.

Sixty-two of the 147 awards last year went to cover $2.9 million in real estate escrow losses. That was down from the 116 awards totaling $5.2 million the fund paid for escrow losses in 2005.

The escrow loses are almost exclusively a New York City and Long Island problem. Sellers’ attorneys there typically hold down payments for residential properties, often as much as 10 percent of the purchase price. Upstate, down payments tend to be much smaller and brokers usually hold the money.

A New York State Bar Association committee chaired by Ira S. Goldenberg of White Plains has been working for more than one year on a study of the real estate escrow process and ways to better protect clients’ money.

Alter said the theft of real estate escrow, which has accounted for 36 percent, or $44.8 million, of all payments from the fund since 1982, is “certainly not a decreasing trend.”

“It is not easily addressed,” she said Thursday. “Lawyers and clients, they get used to doing it one way and it’s often very hard to convince people to put in some safeguards and to change the practice. Most lawyers are good and honest and the honest ones don’t want to change and their clients don’t want them to change because it becomes more complicated.”

The Nassau and Suffolk county bar associations have also been studying real estate escrow practices.

In its annual report, the fund called for the adoption of a court rule requiring the transfer or protection of escrow funds held for clients in instances where attorneys have been suspected of or disbarred for misconduct.

Alter and O’Sullivan emphasized that only a miniscule number of lawyers are involved in dishonest acts that lead to awards. In 2006, 35 lawyers were responsible for the $7.1 million in reimbursements. There are about 229,000 lawyers in New York state.

Alter added, however, that every “blood-curdling” instance of lawyer dishonesty discredits the profession.

“It is something so far from what we are expected to do or how we are expected to behave,” she said.