Who Is “Worthy” of Being Helped?

In a recent article, the writer describes a twist in medical fees. A specialist, in this case a cardiologist, is charging a premium retainer fee for accessibility. That’s access, not treatment! The levels of service created by the cardiologist are $7,500 per year for “concierge” service, $1,800 for “premier” status, and $500 for “select” status. The differences among the levels range from priority to get an appointment to 24/7 access by phone or email. Medicare or private insurance still pays (or doesn’t) for the actual service. But this doctor says that Medicare reduces his billing rate and this is a way to earn the money he can and wants. This is brutally frank. But, as in other areas, economics control.

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/vPZVb9Nbsco/

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Ageism comes to the legal profession

Most people will agree that there are too many lawyers, an oversupply. (Parenthetically, I disagree; it seems to me that there is a dislocation between the supply and the demand for legal services, a situation that the organized bar has never been able to reconcile with successfully.) But I digress.

Assuming, for the moment, that there is an oversupply of lawyers, why should we care? Would that not mean the fees for legal services would come down? Would it not be best to let the marketplace handle supply and demand?

But, If the Bar wants to reign in the supply, how could they? Of course, get rid of some of the lawyers. (Making admission to the organized bar is another way, longer term. Economics seem to be handling this quite nicely, thank you. Law school admissions are down by 10 to 15%. Applications hit a 30 year low. Potential law students understand that spending many thousands of dollars to take the gamble that they will not be able to get a well-paying job at the end of three years is a fool’s gamble.)

Economics, once again, helps us answer the question of how to reduce the supply. There are more than 1 million lawyers in the United States. Of this group, it has been estimated that at least one half of this group are sole practitioners. Another statistic suggests that at least 400,000 lawyers will retire by the year 2020.

If we look at this latter group, and suggest that we treat it any differently than any other group in the organized bar, we would be accused of ageism, and prohibited discrimination. However, if we come up with a metric that is applicable to all lawyers, such as “competence,” then we are safe. Of course, if this metric also achieves our basic goal of reducing the number of lawyers available to serve clients, so much the better.

But, this metric is never applied uniformly. If we look at new lawyers, those who have been admitted to practice for three years or less, I am sure we will find many who are not “competent,” despite the fact that they have passed the bar exam. How many times have "mature" lawyers said, mostly to themselves, that they were happy that they were not the client "back then," that they didn’t know enough to be really competent to handle the matter they did …. that they learned "on the job."

What is the metric for “older” lawyers? Do they have to pass another bar exam? If yes why should age be the factor that determines whether they have to take a new examination? If not, what might it be? Nowhere in the time spectrum of a lawyer’s career is there a requirement for such an examination.

How many times have you, as an adversary, said to yourself my opponent is not very good? In fact, how many times have you said my opponent is not “competent?” Until the appropriate metric can be accepted and applied throughout the entire career life cycle, it seems to this writer that the real focus should be on meeting the needs of our clients who are not served or who are under-served, making sure that all lawyers, young and old alike, are “competent” and move away from even the appearance of ageism.

 

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/OJLQrEKjxrA/

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DOMA down, but why?

The 1st Circuit today held that the Defense of Marriage Act’s denial of federal benefits to married same-sex couples is unconstitutional. Massachusetts v. US Department of Health and Human Services (1st Cir 05/31/2012).

The federal Defense of Marriage Act (DOMA) Section 3 prevents same-sex married couples from filing joint tax returns, prevent a surviving spouse from collecting Social Security survivor benefits, and prevents federal employees from sharing medical benefits with same-sex spouses.

The trial court held that DOMA Section 3 is unconstitutional; the 1st Circuit affirmed.

The court’s decision surveys equal protection and federalism issues and concludes that “governing precedents under both heads combine – not to create some new category of ‘heightened scrutiny,’ …, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.”

Thus the court gave less deference to, and “closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”

The court concluded that denial of federal benefits to same-sex married couples “has not been adequately supported by any permissible federal interest.”

The court stayed its mandate, thus extending the trial court’s stay, in anticipation of the losing parties seeking certiorari in the US Supreme Court.

My view:

This is a decision, purportedly based on the US Constitution, that essentially avoids making an explicit connection to the text of the Constitution.

The idea is that states regulate marriage, the federal government may have something to say in this regard, but the reasons behind the federal government’s actions didn’t have enough oomph. No, there’s no 10th amendment violation, and no violation of the Spending Clause. And no, there’s no “strict scrutiny” going on. And no “new category of ‘heightened scrutiny.'” But wait, let’s give the legislation “closer scrutiny.”

I’m no fan of DOMA, but it’s not really clear to me what this court is doing.

[By the way, similar DOMA issues are pending in the 9th Circuit.]

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Source: http://www.lawmemo.com/blog/2012/05/doma_down_but_w.html

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The Path to Becoming a Solo Practitioner

New Solo host and solo practitioner, Attorney Kyle R. Guelcher, spotlights solo attorney Carl Irace and his path to becoming a successful solo practitioner. Carl discusses his career as an Assistant District Attorney in New York City and explains the challenges of moving from the public to the private sector. Carl also gives tips for marketing solo practices in small markets.

Source: http://legaltalknetwork.com/podcasts/new-solo/2012/06/the-path-to-becoming-a-solo-practitioner/

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Could It Be Satan? Yes, Says Union in Dispute With Law School

Entropy: It’s Not What It Used To Be*

In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.

My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it’s a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I’ve captured their thoughts properly, get it executed and file and serve the document.  If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn’t help when the papers are due Monday at 9.

When I explain how their conduct affected my ability to do my job, the response is one of two things: “Oh, I didn’t realize,” or “you should have told me that before.”  Of course, I can’t tell you anything if you don’t take or return my call. “Oh.”

It’s a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can’t emerge.  These are people who make other people’s lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.

Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It’s not that they don’t eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.

God, grant me the serenity to accept the things I cannot change,
The courage to change the things I can,
And wisdom to know the difference.
Then again, it has nothing to do with God. It has to do with us. We make choices. If you’re inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.

You can choose a ready guide in some celestial voice.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that’s clear-
I will choose Free Will.
When I’m asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else’s choice of disorder won’t completely undermine what I need to accomplish.

The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn’t quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It’s life.

There is a difference between explanations and excuses.  When something doesn’t go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it’s a screw-up.  Yes, screw-ups happen. No, they don’t have to. Are they your fault? Yes. That’s why we call them screw-ups.

Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem.  Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works?  We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.

It’s all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don’t or won’t, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.

It’s hard to fight entropy, but those who do keep the world running.

* The title is brazenly stolen from Buzzfeed’s 21 Jokes Only Nerds Will Understand.


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Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss

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Pharma sales reps are FLSA exempt as outside salesmen (5-4)

This morning the US Supreme Court decided – on a 5-4 vote – that pharmaceutical sales representatives are “outside salesmen” and therefore exempt from overtime under the Fair Labor Standards Act. The Court also unanimously held that the Department of Labor’s recently-announced contrary interpretation was entitled to exactly zero deference.

Christopher v. SmithKline Beacham (US Supreme Ct 06/18/2012)

Christopher, a pharmaceutical sales representative, sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay overtime. The trial court granted the employer’s motion for summary judgment and denied Christopher’s motion to amend the judgment based on the trial court’s failure to consider an amicus brief filed by the Secretary of the Department of Labor (DOL). The 9th Circuit affirmed. The US Supreme Court affirmed (5-4).

The job of a pharmaceutical sales representative is to try to persuade physicians to write prescriptions for products in appropriate cases. For over 70 years DOL acquiesced in an interpretation that they were “outside salesmen” who are exempt from FLSA overtime requirements. In amicus briefs filed in Circuit courts DOL took the position that a “sale” requires a “consummated transaction.” In Supreme Court briefing DOL’s position was that there is no “sale” unless the employee “actually transfers title.”

The Court said that the DOL’s new interpretation is entitled to no deference at all because it would impose massive liability for conduct that occurred before the interpretation was announced, there had been no enforcement actions suggesting the industry was acting unlawfully, DOL gave no opportunity for public comment, and the interpretation is “flatly inconsistent” with the FLSA.

The FLSA definition of “sale” includes consignments, which do not involve a transfer of title. Although DOL regulations say that sales include the transfer of title, that does not mean a sale must include a transfer of title. The regulations also use the phrase “other disposition” which – in this unique regulatory environment – includes the work of pharmaceutical sales representatives. The representatives also bear all the exterior indicia of salesmen (average salaries exceeding $70,000, work that is difficult to standardize to a particular time frame, etc.)

The DISSENT reasoned that sales of drugs are made by pharmacists, not pharmaceutical sales representatives. The pharmaceutical sales representative neither make sales nor promote “their own sales.” (The dissent agreed that the DOL’s current views expressed in briefs are not entitled to any weight.)

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Source: http://www.lawmemo.com/blog/2012/06/pharma_sales_re.html

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Mark Woods: Whole new world when you can read (Florida Times-Union)

A Look Ahead: Hiring and Compensation Trends for 2013

In this edition of The Robert Half Legal Report, host George Denlinger, senior district president for Robert Half Legal, and attorney Charles Volkert, executive director of Robert Half Legal, discuss high-growth specialties and career opportunities for 2013. They reveal the latest trends in hiring and compensation affecting the legal field, the qualities employers are seeking when making new hires and must-have advice for job seekers.

Source: http://www.roberthalflegal.com/podcasts

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HRW criticizes treatment of accused Bangladesh mutineers

[JURIST] Bangladeshi authorities should order a retrial of military personnel involved in the 2009 Bangladesh Rifles (BDR) mutiny due to alleged violations of international fair trial standards, said Human Rights Watch (HRW) [advocacy website] in a statement [press release] released Tuesday. According to the advocacy group, the suspects have been subjected to torture, including beatings and electrical shocks, and at least 47 of them have died in custody. HRW claims that, although the prosecution has stated they will not use…

Source: http://jurist.org/paperchase/2013/10/hrw-criticizes-treatment-of-accused-bangladesh-mutineers.php

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