The legal profession has it wrong with working mothers

I met with a law student the other day to discuss her possibly doing vacation work at my firm in July after her June exams. She told me about a discussion her class had with a female lecturer recently where the lecturer advised female students to forget about having a family until they had progressed as far as they could go in their careers. The subtext is that having a family is a career killer for women lawyers. I remember a similar tension years ago when I was in a large firm and it was an old problem then. It seems that it remains a serious issue today.

I remember a number of conversations with skilled and accomplished women attorneys who practically had to resign themselves to few further major career moves once they decided to have children. It pretty much boiled down to these women having a split focus once they had children and not being perceived to be capable of holding down a substantive practice of their own and taking care of the family.

It was gratifying to read a post by Joanne Wilson (aka Gotham Gal) titled "Still CEO of the Wilson household" in which she describes her life and work commitments. She talks about the many startups she works with while still making sure her home was kept running:

Although the 70% of my time spent on family is no longer 70% it is much less but it is far from zero. I have just figured out how to do it all within the 24 hours of the day and of course taking time out to sleep. Bottom line, as more and more women leave the workplace or re-enter the workplace, the reality is that whatever they choose to do for themselves or even if they never left work, their day job as CEO of the household will always continue to exist. So when VC's or investors are concerned that pregnant entrepreneurs or women with families make them take pause to invest the reality is most women are doing a helluva lot more than anyone realizes and they thrive on it.

Her husband, well known venture capitalist Fred Wilson, weighed in with his post yesterday titled "Motherhood and Entrepreneurship" in which he reinforced his wife's point that she can and does do it all:

I've watched the Gotham Gal go right back to work a week after our first child was born because it was a startup and they needed her. She managed it pretty well. We used to swap days we had to be home early to relieve Betty (our child caregiver at the time). I've watched her take on another startup working in an office in the basement of our house selling ad space in between driving the kids here and there. And as she says in the post, she always had dinner on the table, always made sure the kids had what they needed, and always made sure our home was functioning. She still does that even though she's got something like a couple dozen projects going right now.

This notion that a working mother has less intrinsic value than male counterparts is as offensive now as it was 6 years ago and as it has been for generations. Its easy for men to say that working mothers don't and can't possibly contribute as much as men do and that women should accept that having a family means they just won't progress much further in demanding work environments. What those men don't notice is that there are women working twice as hard as men every day: they are getting their work done and taking care of their families. I've had the odd few days when I've had to take care of our son and still get my work done. I had help from our housekeeper and, even then, it wasn't easy. I developed so much respect for working women, generally, and single mothers, in particular in those moments.

I am sure many firms have taken steps to create a more equitable working environment for working mothers and to make sure that the fact that they have children isn't an immediate disability and those firms should be applauded for that. Unfortunately it seems that the dominant perception is that working mothers are less capable and productive. What is worse is that this perception is being presented to the next generation of lawyers as a Truth which they must simply accept and this just propogates the misperception that working mothers have less value in a professional environment. I find this perception to be offensive and it totally underestimates what contribution these women make on so many levels. I hope those young women about to enter the legal (and other) profession refuse to accept this perception and make their own way in their chosen careers.

As Gotham Gal put it:

No offense guys, I'd love to see any of you do this.

Why giving legal advice on Twitter is a bad idea

Karl Schuler is an attorney in Johannesburg who solicited legal questions to answer on Twitter using the Twitter account @TweetMyAttorney. I picked up on this through Jessica McDonald's tweet about the profile and mentioned that the Law Society would probably have a difficulty with Schuler's invitation to members of the public to submit legal questions. This sparked a bit of a debate on Twitter.

The debate between myself, Eve Dmochowska and Ivo Vegter (primarily) was whether Schuler should be permitted to give legal advice on Twitter. While he has since changed his approach (and this is reflected in his current Twitter bio which appears in the tweet screenshot above), the question remains a valid one. The one challenge I raised is that the Law Society would likely regard such an approach as touting. I approached the Law Society of the Northern Provinces a couple years ago about a proposed subscription legal advice service and I was informed, a year later, that such a service would not be permissible under the Law Society's rules. If I remember correctly the concern the Law Society was that it would amount to touting. This may seem absurd but its important to bear in mind that the legal profession has a history of fairly conservative advertising practices and rules regarding ethical behaviour. It wasn't too long ago that attorneys were not permitted to advertise at all.

Confidentiality and legal professional privilege

While touting may be a regulatory bar to giving legal advice on Twitter and other platforms, there are more compelling reasons why giving legal advice on platforms specifically like Twitter and similar social services is a bad idea. To begin with I have a concern about the implications for confidentiality and legal professional privilege (also referred to as attorney-client privilege). This privilege protects communications between attorneys and their clients from general disclosure. Correspondence between an attorney and a client can't, for example, be disclosed in court by a 3rd party. There are some exceptions and instances where privilege wouldn't apply but this privilege is critical. What many people don't know is that this privilege vests in the client, not the attorney. The attorney is bound by it and the client can waive privilege. If the client waives privilege then those communications are open game and admissions which a client may have made to the attorney in confidence can be disclosed and used by other parties.

Looking at tweets people have directed at Schuler, I see a number of tweets containing potentially sensitive information and which should be kept confidential:

If I do not pay my rent can the sheriff attach and remove my movable assets immediately by means of interim Court Order?

hi I was arrested 4 suspected drink n drive n it took 3hrs b4 dey took blood samples n charge Me, do dey hv a strong case?

There are a number of problems here. These tweets are public and could be regarded as evidence of the Twitter user's intention to waive privilege. This would clear these tweets for use as evidence in legal proceedings. There are implications outside legal proceedings. Imagine the person who tweeted about being arrested for drunk driving being Googled by an industrious insurance company employee when the tweeter applies for car or life insurance. What if a prospective employer finds the person's Twitter profile and discovers these tweets? There are a number of potentially unforeseen and undesirable consequences which can be fairly severe.

Professional liability

The potential consequences for an attorney giving legal advice in such a forum can be as severe. Twitter is not an ideal platform for legal advice at all. The platform is too constrained and too public to enable a lawyer to take detailed enough instructions from a prospective client and give appropriate advice. Taking instructions from a client can be a lengthy process. As lawyers we need all the facts and we need to consider the myriad legal issues which apply to those facts. Advice we give is almost always far too involved to be satisfactorily encapsulated in 140 characters. Trying to squeeze instructions or a brief and consequential advice into a couple of tweets is reckless on both sides. It is almost guaranteed to result in a professional negligence claim when inadequate advice is given on the basis of an incomplete factual matrix and the client relies on that advice to his or her detriment.

Sharing knowledge is good

Where Twitter and other platforms is really useful is raising legal issues and sharing general knowledge about those issues. Here I am referring to posts which discuss legal developments or legal challenges in more general terms and which are not specific to a particular client's circumstances. The posts may fit a particular client's situation but they can't replace specific legal advice. This may sound like propaganda by lawyers who want to retain their income streams but very few cases are so alike that they warrant the same legal advice. Facts vary and cases develop in different directions. The law is increasingly complex and the end result is that legal advice must often be tailored to clients' specific circumstances.

I am a big believer in sharing my thoughts about and knowledge of the law, particularly in my area of speciality. It is an important part of meaningful access to the law and I would love to see more lawyers doing this more often. Legal knowledge is frequently trapped in silos and consumers and businesses often rely on bad and second-hand legal advice, broken telephone style. Empowering clients with more knowledge helps them make better decisions.

Ultimately, using social media to educate and inform people about the law is something more lawyers should be doing and I think it is more beneficial than harmful, by far. Giving legal advice using social media is problematic for a number of reasons, though.

The broken legal services model and the page count myth

The current legal services model is fundamentally flawed. At least certain common perceptions of the legal services model are. In my modest experience, clients, and a great many lawyers, see the legal services business as essentially being about two things: production of documents and/or time based attendances. Those perceptions do both clients and the legal services industry a disservice.

Perceptions of the value in legal services are skewed either in favour of time or documents. Both miss the real value of legal services even as they typically benefit law firms and warp client perceptions of where the value in legal services lies. Clients tend to instruct their attorneys to prepare agreements for some or other transaction with the expectation of paying either for the document they requested (the documents clients sometimes believe they need are not necessarily the correct documents) or the time it takes to create documents supporting the transaction. In the case of time, fees are indeterminate and increasingly a cause for concern for clients who are growing wary of paying exhorbitant fees based on a billing model that rewards inefficiency.

In the case of payment for a contract, clients balk at paying thousands and tens of thousands of Rands for agreements, as if a 20 to 30 page document can't possibly cost that much. Part of the reason for this, I think, appears to be a sense of a document's value based on its length. A one page agreement must cost less than a 20 to 30 page document and if a client wants to keep legal costs low, it makes sense to request a one or two page agreement instead. Unfortunately, this approach to legal services is fraught with difficulty. Contracts are increasingly complex as the legal landscape becomes more complex. Reducing page counts may be a way to simplify a document but its a bit like removing supporting pillars from a building because it makes it look cluttered rather than appreciating that the pillars keep the building up.

Time based fees are usually very lucrative for lawyers but one of the complaints about the billable hour is that they are indeterminate. Time based fees are practically synonymous with the rhetorical question, how long is a piece of string? They have also become synonymous with legal billing for legal services. No matter what you need done, the classic charge for legal services is the hourly rate. Clients pay whatever the lawyer's time is worth and lawyers are rewarded for being inefficient with their time. Lawyers in most firms have their performance measured by reference to how much they bill, relative to budgets. When a billable hour is divided into ten units of six minutes as a unit is logged for every six minutes, or part thereof, the billable hour becomes a very profitable proposition for clients. That said, it is also the standard way to charge for legal services and as expensive as it may be, a lot of clients are used to it and even expect it.

The value of legal services is more about the skill and knowledge that are employed to create and manipulate legal frameworks which may seem abstract but they govern almost every aspect of our daily lives, including those commercial aspects that clients concern themselves with. Legal services should not be valued by reference to page counts or the time involved in rendering them. When clients have a commercial legal challenge to overcome, that is usually best achieved by developing a better legal framework for what they intend doing (for example, structuring a transaction or some other contractual framework) or help understanding the parameters of the legal frameworks they operate within (for example, legislative requirements).

The billable hour is a convenient way to charge for legal services but it has little relation to value. Similarly, a document's page count is as much a measure of the framework's value as software code is a measure of the completed application's value (what is worth more to you: the reams of text comprising Microsoft Word's underlying code or Microsoft Word, the application itself?). Contracts are not the embodiment of the legal framework, their purpose is to describe it in sufficient detail, including both explicit instructions as well as the legal mechanics required to help achieve the parties' objectives and to satisfy legislative and regulatory requirements.

The current legal services model is broken and perceptions about it detract from the value of legal services from clients' perspective. These perceptions also place lawyers under pressure to perform according to the wrong metrics and that undermines their ability to deliver real value as opposed to artificial, perceived value.

Plain language complexities in contracts

As you probably know by now, the Consumer Protection Act mandates contracts written in plain language. That means al that legal jargon few people understand should be removed and replaced with more straightforward language that the average person can understand, not just multi-lingual lawyers with a strong grasp of conversational Latin, Old English and Dutch. While we can all appreciate the value of plan language in a document as complex as a contract, actually writing a contract in plain language and still dealing with all the issues you need to deal with in a contract isn't always that easy.

One of my clients asked me to take a look at a set of clauses in an agreement I prepared for the client a little while ago. The clauses are designed to limit my client's liability and were the latest iteration of the liability limitation clauses I used in my contracts (lawyers frequently have precedent banks where they store old precedents and examples of contracts and documents - more often than not any documents your lawyer prepares for you is based on precedents in your lawyer's precedent bank). Like many lawyers, I improve clauses I use in contracts almost on an ongoing basis. Each agreement I prepare for a client typically represents the latest wording and structure that I am using. The clause in question looked a little like this:

1. LIABILITY
1. Disclaimers and limitation of liability
1. The Customer agrees that Acme is unable to, and is not required to, guarantee a particular result or set of results.
2. The Customer agrees that Acme shall not be liable in respect of any loss or damage caused by or arising from the unavailability of, any interruption to the Services.
3. The Customer further agrees that –
1. under no circumstances whatsoever, including as a result of Acme’s negligent acts or omissions or those of its servants, agents or contractors or other persons for whom in law Acme may be liable, shall Acme or its servants, agents or contractors or other persons for whom in law Acme may be liable (in whose favour this constitutes a stipulatio alteri or stipulation for another), be liable for any direct, indirect, extrinsic, special, penal, punitive, exemplary or consequential loss, damage or damages of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise or as a violation of any Party’s intellectual property rights and whether the loss was actually foreseen or reasonably foreseeable), including but not limited to any loss of profits, loss of revenue, loss of operation time, corruption or loss of information or data and/or loss of contracts sustained by the Customer, the Customer’s directors, servants, dealers or Customers, resulting from the performance or availability of the Services.
2. no claims or legal action arising out of, or related to, the Services or this Agreement may be brought by the Customer more than 1 year after the cause of action relating to such claim or legal action arose.
2. Indemnity
1. The Customer hereby indemnifies Acme and its officers, directors, employees, servants, agents or contractors or other persons for whom in law Acme may be liable (in whose favour this constitutes a stipulatio alteri or stipulation for another) from any loss, damage, damages, liability, claim, expenses, costs orders or demand due to or arising out of or for:
1. any violation of any Party’s intellectual property rights including, but not limited to, copyright, trade mark and/or patents; and/or
2. breach of privacy as a result of the collection and/or processing of personal information (as defined in the Promotion of Access to Information Act, No. 2 of 2000) by the Customer, its directors, employees, agents, suppliers, contractors or service providers; and/or
3. defamation or slander; and/or
4. any loss or damage arising out of or in connection with an act or omission of the Customer in connection with the Services or facilities provided by Acme to the Customer.

These clauses cover quite a bit of ground and are intended to curtail Acme's liability to the point where any potential liability for harm suffered by something other than gross negligence (you can't contract your way out of liability for gross negligence) or wilful misconduct should be pretty limited. The immediate problem with the clause is that it really isn't very easy for the average person to understand on a first or second reading and that prejudices usability quite a bit. Adding to this, the Consumer Protection Act requires companies dealing with consumers to highlight these sorts of clauses and when you factor in the plain language requirements, these clauses need to be intelligible to the average person. Unfortunately it isn't, despite it being a fairly good attempt at achieving their objective.

I took a look at this clause yesterday afternoon and thought there had to be a better way to achieve the clauses' objective of limiting my client's liability while keeping the clauses written in as plain language as is possible. When it comes to plain language, there is always going to be a tension between using efficient and effective language and writing the clauses as simply as is possible to make the clauses intelligible to the average person. That is not easy at all. One reason is that many of the terms lawyers use are almost shorthand for fairly complex concepts with a lot of legal development behind them. Ditching the terminology would require us to explain the concepts in sufficient detail to retain the effect of the clause and not detract from that effect by diluting the language with terminology that is too simplistic. I suppose its analogous to watering down the jet fuel to a point where people can handle it safely but at the risk of negating its value as propellant in the jet.

So I sat down with this complicated set of clauses and reworked them over the course of a couple hours. The process involved looking closely at what each element of the clauses was intended to achieve, the legal implications of those clauses and considering whether there was a way to achieve the same effect without blurred vision and headaches. This is one of the versions we (I collaborated with one of my colleagues) came up with:


1. LIABILITY
1. Disclaimers and limitation of liability
1. The Customer agrees that Acme is unable to, and is not required to, guarantee a particular result or set of results pursuant to the provisions of this Agreement.
2. The Customer agrees that neither Acme or Acme's Associates shall be liable to the Customer in respect of any loss, damage or damages, howsoever caused and howsoever arising, as a result of anything done by Acme pursuant to the provisions of, or in furtherance of this Agreement.
3. In addition to Clause 1.1.2, no action or proceedings arising out of, or related to, the Services and/or this Agreement may be instituted against Acme by the Customer more than 1 year after the cause of action relating to such claim or legal action arose.
2. Indemnity
1. The Customer hereby indemnifies Acme and Acme's Associates from and against any loss, damage, liability, claim, expense, costs orders or demands which may be suffered by or may arise as a result of anything done by the Customer, save as a result of Acme's unlawful conduct, wilful misconduct and/or gross negligence.

The difference is pretty stark although the question now becomes whether this revision has the desired effect: protecting my client and limiting its potential liability as much as the original clause while improving the clause's legibility and intelligibility.

I think the revision does achieve what I set out to achieve but we lawyers can't afford to rest on our upholstery. The law changes pretty quickly and so do drafting conventions. We have to keep iterating with our contract language or we risk falling foul of legal requirements like plain language requirements or opening holes in our clauses' contractual protections. This sort of work is ongoing and I think it also reveals how seemingly plain language requirements are not always easily met.

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Photo credit: Contract by nyello8, licensed CC BY 2.0

What do clients want and how can lawyers deliver?

John Giles, one of the partners over at Michalsons, published a post every lawyer should read. His post is titled "What clients want" and it certainly got my attention:

I recently used an attorney to evict one of my tenants and recover rent that they had not paid. It was really interesting to be on the other side of the fence for once. Rather than being an attorney providing a service to a client, I was the client receiving the service from an attorney. I must say it was not a good experience. But I learnt a lot from it and it made me realise “what clients want“. So here are some of the things that, as a client, I wanted. I have made a promise to myself that I will always try to do the same things for my clients.

Giles sets out a number of ways attorneys can really improve their levels of service and more effectively give their clients what they really want from their advisors. I wish I could say I have been doing all these things for my clients but it is so easy to get caught up in the myriad tasks and deadlines that I too easily forget about some of the basics.

Being an attorney is a complicated occupation. There must be a dozen attorneys in a kilometre radius from my office (and just about any other street corner you may find yourself at in most major cities) and competition for some types of work is fierce. As clients become even more cost conscious attorneys are pressed to adopt a number of strategies to secure and keep their clients. Many attorneys in smaller firms will charge lower fees and attorneys in larger firms just won't do work for certain clients who can't afford their fees. Add the perennial perceived value challenge to the mix and the end result is often a land grab for as much work as you can bring in. The problem with that approach is that unless the volume of work is appropriate given the type of cases involved (volume works well for debt collections, not much variation), the danger is not dedicating enough focus to each file and the client behind that file.

At that point service quality deteriorates and clients become frustrated. Some clients will ask questions, challenge their attorneys where they are not giving enough feedback and others will keep quiet, perhaps assuming that this is normal and that something must be going on. That latter group of clients is perhaps most worrying and too easy to overlook.

I've been thinking about this quite a bit and the solution, for me at least, is probably a little counter-intuitive but I think it is the right one. My solution is to be far more selective about which clients I take on and spend more time focusing on a smaller client base and the work I am most passionate about, aiming for much improved and personal service. We all have clients who are not our ideal clients or who simply don't see the value in what we do and delay payments or simply don't pay at all. Those clients also tend to take up a lot of time which, given time's scarcity, comes from time that could be spent on the sorts of clients we'd rather focus on. That often also comes after our less than ideal clients persuade us to reduce our fees to barely break even levels.

I remember having a conversation with Richard Mulholland one night in Japan in 2008 as we walked through the streets of Sapporo to find an Italian place for dinner. We were talking about pricing professional services and, at one point in the conversation, Rich made the point (I'll paraphrase what I took away from his point) that when you start charging more for your services, whether it be to focus on better paying work or to place a higher value on your work, some clients will stop briefing you and move on to more suitable advisors. What happens in the process is that you find yourself in a position to give your clients who remain far better service without the constant worry about where the money is coming from to pay bills.

It sounds pretty cold to reduce client choice and the manner in which a business is conducted to Rands and cents but these are businesses intended to make a profit and sustain their proprietors, freeing them to focus on the important stuff - their clients' files and their objectives.

What Giles is talking about in his post is meaningful and personal service which should be every attorney's goal (well, at least those attorneys who would like to cultivate a loyal and better quality client base). These are things worth doing well.