California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - DECEMBER 1999
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LETTERS

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Holidy cheer from the American Bar Association...

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Horrified by growing number of sloppy legal practitioners

In connection with public use of self-help legal publications (November California Bar Journal), you quote a lawyer named Radcliffe as saying that consumers need to make sure "that the information on a legal website or in software is up to date, and that the forms offered are still valid."

I would add to this, based on bitter experience, that licensed members of the California bar should make sure "that the information on a legal website or in software is up to date, and that the forms offered are still valid." As a member of the bar myself, I am appalled, indeed horrified, at how many sloppy and incompetent individuals are practicing law in this state. Their clients might be better served by the Nolo Press.

Instead of wasting time over fancied instances of "unauthorized practice of law," I suggest lawyers everywhere should ensure that they and their brethren are themselves competent practitioners. CEB/MCLE is generally regarded as a farce. There must be a better way.

Louise Frankel
San Francisco

Equal treatment, or special treatment?

I read about the woman who was reinstated to the list of practicing attorneys in good standing by the state Supreme Court.

As the readers may recall, this is the woman who cut her hair and dressed up like a man to take her husband's bar examination for him. Of course, after being caught, she advanced the totally predictable defense that her husband yelled at her and was mean to her, and therefore, she should not be held accountable.

I just hope the next time a man finds himself in similar circum-stances, he is treated in a like manner. Frankly, I believe a man never would have been reinstated.

Robert L. Kelley
Camarillo

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What are you whining about? You're the one who insisted on a speedy trial...

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Collecting contingent fees without written agreement

In "The Rigors of Fee Agreements" (MCLE self-study, October California Bar Journal), David M.M. Bell writes, "The maximum contingency fee in a [debt] recovery action between merchants is set by Business & Professions Code 6147.5." Some may be misled by this statement.

In fact, the statute says, "In the instances in which no written contract for legal services exists . . ., an attorney shall not contract for or collect a contingency fee in excess of" specified limits. No statute limits the contingent fee in a collection case, to which an attorney and a client may lawfully agree, provided they enter into a written fee contract. (However, the fee may not be "unconscionable.")

The importance of B&P Code 6147.5 is that it creates an exception to the usual rule that a contingent fee is enforceable only if it is in writing. In the specified cases, the statute permits the collection of a contingent fee based only on an oral agreement if the fee does not exceed the percentages stated in the statute.

Chris Valle-Riestra
Oakland

Avoid deadbeat clients with replenishing retainer

The very simple fact is that clients hate to pay fees. Ninety percent of civil cases involve money that the client should be paying or is not being paid. More often than not, this involves a client who is having financial problems and woe be to the lawyer who allows this client to "run a tab" for legal services. Obviously, clients who are facing criminal charges wherein jail time or a large fine and costly court-mandated programs are involved do not put their lawyer at the top of the list to be paid.

A very simple solution is the written "replenishing retainer." The client who cannot or, more import-antly, will not pay an up-front retainer fee should be avoided or, if applicable, referred to an appro-priate pro bono legal provider. In addition to other aspects, monitoring the financial aspects of the case allow for a timely withdrawal or substitution of attorney before the client and attorney relationship deteriorates completely.

A client who is continually made aware of and paying the costs and fees involved in his/her case is more responsible in making decisions. They listen to their lawyer's advice and are generally, believe it or not, less demanding. They tend to be more amicable in settlement negotiations and far less likely to allow emotions to cloud their judgment. More important is the fact that these clients rarely if ever question their bills or attempt ex post facto fee reductions or file complaints with the bar or malpractice actions.

Bob Robinson
Silverado

Bad lawyers deserve harsher punishment

Each month I read with utter consternation about slap-on-the-wrist solutions to errant conduct of some lawyers. In the October issue: after stipulating to misconduct in 11 cases, [an attorney] will be back again in 18 months if he makes restitution. After stipulating to misconduct in 16 cases, [another lawyer] may return in 22 months to continue the carnage. On another page, with stipulating to misconduct in nine cases, he could be back in five months.

When will we, if ever, face reality in dealing with repeat offenders who harm our profession and cause the public to distrust our profession?

John A. Weyl
Lexington, Ky.

25-hour CLE requirement should be retroactive

The board of governors, in their infinite wisdom, has engaged in unjustified payback tactics and business as usual behavior, in deciding that those practitioners who waited until the Supreme Court's decision on the lawfulness of CLE requirements must complete the old requirement of 36 hours rather than the new requirement of 25. There is no justification for this stupid decision.

This decision, along with the myriad of other stupid decisions the board makes, is the very reason I withheld voluntary dues.

Richard J. Burton
Old Sacramento

Praise for new president

I remember Andy Guilford as one of my first adversaries in some long-forgotten litigation matter some 20 years ago. While a zealous advocate for his client, he was at all times courteous, fair and easy to deal with. It was these characteristics that allowed us to reach an amicable settlement.

If there was any single lawyer in the state that I could have picked to lead the bar into the new century after the problems of the past few years, it would have been Andy Guilford.

Avery Einhorn
Jerusalem

LETTERS TO THE EDITOR:
Letters to the Editor: California Bar Journal invites its readers to send letters on any topic. All letters must be signed with a daytime telephone number and complete address. Only cities will be printed.

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