08 January 2004

A few words on stupid lawyer regulation tricks…

I was reminded recently—by having to tell a new client that yes, his previous attorney had committed malpractice when reviewing a literary contract because the previous attorney didn't know publishing law, but no, he couldn't sue because the statute of limitations ran ten years ago (and the lawyer has been dead for five years)—that the various state bars are stupid about lawyer specialization. Oh, damn. I used the "s" word regarding something other than patent law, which means that I've committed a technical violation of the Rules of Professional Conduct; . <SARCASM> The only thing that too many lawyers specialize in is "ka-ching!" (billable hours). </SARCASM> In the ridiculous opinion of the constipated old white men who decided on this (back in the 1970s, as far as I've been able to determine), it would deceive the public to say "specializes in" unless there is some kind of certification involved. It's probably just serpent envy; that's how the medical profession does it. Wait a minute—we're the cold-blooded reptiles here… In any event, a lawyer may say "concentrating in;" a lawyer may "restrict his/her practice to;" but a lawyer may not say "specializing in."

This is one of the most inane elevations of form over substance that I've seen in a long time. It even exceeds the vast majority of what I observed in the military bureaucracy. My new client had gone to a local lawyer who had been recommended by a neighbor after a residential property dispute. He thus got a residential real estate lawyer's opinion on contract language concerning payment for and control of dramatic adaptations—with all the accuracy one could expect. The reality is that lawyers are probably far more specialized than are doctors. Have you ever heard of an ENT specialist who only works on the left side of the throat? On the other hand, have you ever heard of a plaintiff's-side personal injury lawyer whose advertising makes clear that he primarily sues railroads and trucking companies for vehicle collisions? I know of a whole firm of the latter, and I'm not even referring to Madison County.

Dammit, I am a specialist, and the technical rules can go to hell. If I ever get charged, I'll sweetly ask why they're looking at a technical violation, particularly when I am specifically disclaiming any board certification, when they admitted even this individual (Professor Bainbridge is probably still trying to forget him, as the description in that opinion is inordinately generous) to practice in the first place. We deceive the public more by pretending that virtually every lawyer is at least minimally qualified to handle virtually every matter than we would by admitting that we specialize, even without "board certification." The same goes for law firms. For example, even though there are several hundred lawyers at [name of major Chicago firm masked to protect the innocent], many of them good ones, that firm is absolutely the wrong place for an individual creator of intellectual property to seek counsel. Even when there is no actual conflict due to some of the other clients of that firm, it is so pro-publisher by nature that the advice it provides would at least be suspect.