Tag Archives: attorney

Negative Connotations of the Word – Attorney

Negative Connotations of the Word - AttorneyTo be (a lawyer), or not to be (a lawyer); that was our question.  Many of us decided to go into the practice for a myriad of reasons; social justice, money, fame because playing piano in a brothel was unfeasible and so on.  We studied all the law and all its historical jurisprudence in our respective law schools.  We further learned in school or elsewhere the scorn many people hold for attorneys.  Why is this so?

“The first thing we do, let’s kill all the lawyers.”
William Shakespeare, King Henry VI Part 2.

 

 

“My decision to become a lawyer was irrevocably sealed when I realized my father

hated the legal profession.”  John Grisham

 

Perhaps people are jealous of the huge sums of money we make; at least that is what I hear. Perhaps they hate our nice suits or fancy cars or big houses.  I have heard those do exist too.  Perhaps they are threatened by the self-discipline they know it takes to get through years and years of agonizing legal education.  Doctors too are often held in low regard.  Many medical friends of mine will relate similar experiences of scorn and derision.  They also often tell of the often fictional “good life” of a well-paid physician.

 

“’Lawyer’, n. One skilled in circumvention of the law.”
Ambrose Bierce, The Devil’s Dictionary.

 

Barristers hold a proud place in the English and American common law.  So noble was the practice in England that the barristers used to not touch the money they were paid.  Patrons would place pay in their robe pockets to keep the honorable practice of law from the low-brow collection of money.  Where did those days go?

 

The above-cited quote from King Henry VI does not mean that life would simply be more pleasurable if there were no lawyers.  It meant something more deeper and more profound.  Within context, the quote inferred that lawyers were the keepers of the rules; the arbiters of structure in society.  In the noble ancestry of the practice of law, this meant that without laws, and therefore lawyers to administer and interpret and argue those laws, there would be anarchy.

I don’t think you can make a lawyer honest by an act of legislature.  You’ve got to work on his conscience.

And his lack of conscience is what makes him a lawyer.” Will Rogers

A measured and organized society needs rules.  Those rules need to be known by and regulated by lawyers.  It is not any more or less complicated than that.  And still we are far too often scorned.  When I began my practice of law, I realized that four easy “riles” would elevate me into the top third of practicing counsel: (1) be competent, if not expert, at least competent in the area in which you are practicing; (2) look clients in the eyes when you speak to them; (3) be honest about the frailties of their case; and (4) manage client expectations.  I learned this lesson the hard way; as do we all.  A growing percentage of my clientele’ emanates from someone else’s client list.  That former counselor somehow lost those clients by violating one of these four rules.  I have violated, to some degree still do violate, at a least rules #3 and #4.  I like all attorneys like paying customers.  There is a profound difference between voluntary and involuntary pro bono work.  However, in my zeal for an exciting case or zest for paying the overhead at my office, I still find myself promising a little too much, saying it a bit too optimistically, or honestly underestimating the challenge of a case; especially since I often find myself on the plaintiff bar of the practice.

 

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
Abraham Lincoln

 

With that in mind, there is a small percentage of the bar who give attorneys their bad name.  We all know who they are.  For me, 90-95% of the Dayton bar are people: (1) I respect; (2) I like personally; and (3) with whom I would share dinner and/or bourbon.  It’s the other 5-10% of the sample population who fail on two or all three of those accounts.  They are not merely “ambulance chasers”, but endeavor to belittle clients and opposing counsel alike; I fear out of a need to compensate for shortcomings elsewhere.  They are the ones who, often in loud and boisterous voice, transmit the form of arrogance and lack of empathy that we all seem to hear when discussing lawyers.  The massive amount of lawyer jokes are on one level humorous, yet on another level telling of the important role we attorneys play in modern society and also the scorn with which we have to deal.

 

The attitude toward attorneys might have something to do with their portrayal in movies and on TV.  From Perry Mason, Jack McCoy on “Law & Order”, or Atticus Finch in “To Kill a Mockingbird” at one end of the spectrum to the drunken underdog played by Paul Newman in “The Verdict” or Al Pacino’s Arthur Kirkland in “And Justice for All” on the other end, lawyers are seen as everything from the most noble to the most base of creature.

 

“I think we may class the lawyer in the natural history of monsters.”
John Keats

 

We like to see ourselves as fitting in the former category, but due to occasional perception problems or arrogance disguised as supreme confidence, some at times see us as fitting more snugly into the latter.  In part, people fear the unknown.  Like taking your car to a mechanic you do not fully trust or your child to a new doctor, humans approach the unknown with concern.  For most people, the American legal system is the unknown.  The best teachers are those who can take complex information and explain it simply.  In part that is what we are; legal teachers as well as counselors.  Let us never forget that.

 

The bottom line is this: We need to drum out the 5-10% that ruin our reputations and defame our good intentions and slowly, client by client, educate people of the importance of law in our society and the noble way we (try to) practice it.  When will I stop “practicing” at law?  I will get back to you on that one.  Often it is a simple matter of education.  The more that our clients understand the complexities (and at times idiosyncrasies) of the law applicable to their case or the frailties of the case they think they have, the more they seem to appreciate our efforts, training, and compassionate practice of the age-old and noble craft of practicing law.

 

“The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily, that he can get you out of a scrape.”
Ralph Waldo Emerson


The Mark Bamberger Co., LLC is a general practices focusing on bankruptcy, civil litigation, criminal defense, employment law, family law, environmental law, and animal law.  See www.bambergerlaw.com.  TMBC has offices in Tipp City, West Chester, Enon, and Spring Valley, Ohio.

As the famous remark by the plotter of treachery in Shakespeare’s King Henry VI shows – “The first thing we must do is kill all the lawyers,” – the surest way to chaos and tyranny even then was to remove the guardians of independent thinking. http://www.spectacle.org/797/finkel.html, The Ethical Spectacle, July, 1997.

These percentages are anecdotal averages drawn from a consensus with other attorneys and is pertinent to the Dayton (Ohio) bar.  My experience is that for the Cincinnati, Columbus, Toledo, or Cleveland bars, the percentage of bad actors is notably higher.

Appeal this!

US Appellate Court Justice Douglas Ginsberg

On TV, whenever someone is convicted in criminal court, they immediate are told by their legal counsel, “We can appeal”.  The expectation is that anyone can appeal a criminal conviction.  Oh contraire!

There are only certain circumstances in which a convicted felon can file an appeal.  First of all, the appellate attorney (who may or may not be the trial counsel) has to have solid grounds.  Even though a case can be “appealed as of right”, that does not mean it can be realistically appealed.  The client must find that either the judge made an error in ruling on the pertinent law or instructing the jury or the jury formed their opinion based on a bias or  the defense attorney fail to do the best s/he could do for the client.

If an appeal is feasible and the attorney is ethically ok with doing it, a “Notice of Appeal” has to be timely filed to the appropriate court.  If it is not timely, the client better have a darn good reason to file it late, lest s/he be turned down off the top.  In some instances, the time to file an appeal can be “tolled” (stopped) due to one reason or another.

If the Notice is timely, the higher appellate courts have right of certiorari (literally meaning the right to “be more fully informed”) of the case before they decide to accept it.  This is especially true of the Ohio and federal Supreme Court, which turns down far more cases than they accept for deliberation.  The first level about the trial court is the State district Court of Appeals, who statutorily have to rule on appeals as of right.  Many others do not.  You can think of the federal system as a mirror of Ohio courts, except for federal questions (like violations of federal constitutional or federal regulations) or cross-state concerns (“diversity”).  Federalism (mainly defined in the 10th and 11th Amendments of the U.S. Constitution) mandates that States are sovereign and can only be trumped by the federal courts under specific conditions (see my article “The Civil Side of Litigation” for more discussion on this topic).

If our case is accepted, the moving attorney files an “Appellate Brief” to the court.  This is followed by a “Response” from the prosecutor (either state or federal).  At that point, the Appellate court decides to either: (1) accept the Defendant-Appellant’s argument; (2) deny the argument; or (3) docket the case for oral hearing.

It is rare that an appellate court will hear a case “de novo” (“anew”).  Usually, they go only on the record established from the trial court.  In other words, they hear no new evidence and examine no new witnesses; only rule on the law before them as established in the record handed to them by the lower trial court.

In the uncommon case when (1) happens, the case is usually remanded (sent back) to the trial court that heard the case for another trial, perhaps full and perhaps only on the strictly remanded portion, say sentencing.  If (2) happens, the only recourse is to appeal to the next higher court of appeals, which may well decline certiorari unless the case poses a new or at least intriguing legal question.  In the rare case (3) happens, both sides are scheduled to argue their points “to the bench” (in front of the judges).

In summary, if a client asks for an appeal they have to forewarned that it is a lengthy and potentially expensive process; and by the way, the success is usually low of winning there.

MJB  2/10

The Second Wave of Bankruptcies

Mark J. Bamberger, Esq., Principal

The Mark Bamberger Co., LLC

Those with adjustable rate mortgages (“ARMs”) who made it through what seems to have been the worst part of the recent Recession are taking a deep breath in thanks of maintaining their homes from foreclosure either within or without Bankruptcy.  It is good news, to be sure.  But before uncorking that champagne, bear this in mind.  Many economic experts who study these things forecast that a second wave of foreclosures and bankruptcies on the near horizon.

The reason for this pessimistic prediction has to do with the structure of many housing loans.  Many of the ARMS still out there are about to hit a second “adjustment” phase, in which, like the first one, the rates will shoot for the sky.  This could raise some ARMs from 6% to perhaps more than 10%, meaning hundreds of dollars more in monthly mortgage payments for the average household and further financial peril.  This wave is predicted to begin washing up on our shores later in 2010 and into 2011 and 2012.  And no, this has nothing to do with the Mayan calendar!

As before, the important thing to do is avoid panic.  Just as the federal programs for home retention, for example President Obama’s Home Affordable Program, helped so many through the first wave, many who know this stuff say a second mortgage assistance program is on its way.  Also, mortgage brokers are now accustomed to dealing with attorneys representing economically challenged and desperate clients.  My mantra is this: “As wonderful as your house is, in this market the bank does not want it!  It is in their best interest to keep you as a paying customer as long as they can”.  In other words, they are on your side – well as much as a monolithic, cold, heartless creditor can be.

And on the subject of mortgage broker empathy, more often now I see more clients in my offices concerned about the pace of their loan modification under federal or state home retention programs.  They also complain about the mortgage brokers repeatedly losing paperwork and nagging them for “updated financials” to process their modification applications.  Although I join many others in assuming an insidious and nasty motive from mortgage brokers, some of this just makes sense.  As I advise my clients, mortgage creditors are so overwhelmed with modification applications that it can literally take four months or more for them to review a client file and render an offer on modification.  The lost paperwork and need for them to update that client’s financial information is more an artifact of the backlog than anything insidious.  Alternatively, if a client has evidence of nasty motives, I am more than happy to take their civil case against that mortgage broker.

General Practice

When you are in need of legal services, you need to find the right attorney. Whatever legal problems arise in your life, you will be in good hands with The Mark Bamberger Law Co.

We provide our clients with a wide range of overlapping practice areas, from drafting wills, trusts and estates and handling personal injury cases to negotiating our clients tax settlements with the Internal Revenue Service. From the simple to complex, we provide effective and caring representation.

We are proud to ardently and aggressively represent your case, no matter its size. You can depend on us to fight to obtain the best outcome for you.