Michael Sean Quinn*
What happens in and to a market when the prices of those
selling goods and services rise beyond consumer expectations and/or consumer
tolerance? How might all this happen in the market place for legal services
charged on an hourly basis. (These observations will not apply to contingency
fees—at least not here–though they might apply analogously to fixed fee
arrangements. In any case, “L” and “Ls” will denote “lawyer” or “lawyers” and
closely related persons or entities.)
Some of the following will occur, either alone or in
combination. And, of course, there are other situations that can have
influence. Indeed, I suspect that they are growing.

(1) All (or nearly all) potential customers will stop purchasing
the service.  This is unlikely in the
legal market place. If someone is selling cup cakes on the side of the road and
is charging $5.00 per cup after having charged $0.25 for a while, the business
will fail.

(2) Some people and entities do not regard prevailing legal
fees as too high, and so keep purchasing. For example, very wealthy people need
tax lawyers as well as probate lawyers, but they also need divorce
lawyers.  I  have told possible-Cs and actual-Cs many
times that litigation is a “rich man’s game.” I have given lectures in which I
have suggested that people should buy liability insurance mostly because such
insurer’s are likely to have a duty to defend.

(3)  Some people and
entities no not regard some of them as too high. The trustee and his lawyers in
the Madoff recovery cases will make more than $1 billion in fees, but it is
mostly a contingency fee. Huge corporation spend what they must in order to do
lucrative Ms and As.  Of course, they are
investing in and through legal fees, and they have lots of money with which to

 (4) In smaller cases,
there have been temptations for many years to pursue deals, wills, and cases
pro se, and the availability of work books and instruction manuals in book
stores—How One Idiot Can Divorce Another On the Cheap–as
well as similar documents findable on line seem to be working some of the
time.  This can be thought of as a new

(5) There is also a modified version of this market. In this
one the potential customer does most or all the work but gets a bit help over
the internet or phone, e.g., the imaginary firm “Zooming, Booming, and
Blasting.” Usually, these go with the customer using goods provided, like work
books, guide books, internet messages, and the like.

(6) There is a new sort of customer response within existing
legal markets, and I will call this “client advertising” or “potential client
advertising” or “legal service customer advertising.” All are abbreviated as
“pC.” This addition to the existing and more or less traditional market for legal
services works by pC advertising his/her interest in procuring legal fees and
naming a price or price range. 

Of course, there has always exited price competition in the
legal services market, but Ls try like the devil to conceal it, up to an
including trying to and actually denying it, even to each other, more or less.  Antecedent price negotiation is not something
which is acknowledged to be a common lawyer-pC interaction, and for good
reason.  Given the fact that there are
now probably way too many lawyers, e.g., in Texas, especially rendering
services for more or less the middle class, there is competition for work.
Whenever that exists, there is price competition, whether it is kept
confidential, i.e., secret, or not.  Here
is the attitude of the legal profession: Keep it confidential as long as
possible. All honor to the “long gray line.”

(Of course, not all reduced prices are the result of
competition.  If someone is placing an
emphasis in his/her practice on helping the not-so-well-off, e.g., old people, fees
may  be “discounted” out of a sense of
moral obligation, or something like that.)

 Now consider a
recently publicized case of pC advertising. A fellow was in the midst of a
divorce; he had put $45K into legal fees, and he was either running out of
money, or he was fed up with spending it. (Cs often get fed up with lawyer
activities, partly because lots of it is pointless and partly because they
don’t understand what L is doing and why. As all Ls know, there is such a thing
as phony practice.) I wonder if his soon to be ex-wife was not involved in what
is about to be described, since it was her potential assets that were being

This fellow “nailed” a sign, as it were, to the court house
door indicating his need for a new lawyer. 
He basically said that he was out of money but that he was licensed in
the region to provide a type of service that most people need from time to time
and want even more often than the quite need it. He offered to exchange his
services for the services of an L and impliedly offered to come to a
contractual agreement specifying the tit for tat.  Of course, this is usually called
“bartering.” (Several lawyers offered to take him up on it.)

Somebody offered to enter into such a relationship with me
not long ago. So what inferences do I draw from this? “Boys and girls,
‘Bartering is back and big-time, soon enough.’” 
Imagine: ten loafs of whole wheat bread for each 30” of any deposition.
. . .

I suppose it must be remembered that not all barters are legal. For example, rumor has it that there are some arrangements whereby a client pays a lawyer for legal services by means of sexual services. Presumably, there are bargains for such arrangement, and exactly how hourly billing for one sort of these services might be hard to match up with time-based fees for the other. 

A case of this sort may have arisen in Texas this year. According Law360 for November 18, 2015 “[a] San Antonio attorney in private practice [msq–where else in the profession might he have been?] was arrested [on the Tuesday before the 18th] on charges that he forced three former clients to sleep with him in courtroom conference rooms, a motel and in his office, in exchange for his legal services.” He was charged with “compelling prostitution,” and that can carry a sentence of 20 years. His bond, however, was a “mere” $15,000. The women have indicated that they remember the events clearly. Assuming this was not “Cosby Sex,” one wonders why there would be any doubt of recollection.  One also wonders about the claim that the defendant “forced” anything, illegal though his bartering was.**

A more recent illegal barter came up in a Louisiana disciplinary proceeding. It seems that L charged and was paid in “weed.” The Disciplinary Board concluded that L shouldn’t not be prevented from working for this sort of m.j. based misdemeanor. Therefore, it also concluded that the appropriate sanction/punishment would be a deferred one year suspension conditioned upon L’s compliance with a Lawyers Assistance Program, an addiction treatment program. 

(The article in ABOVETHELAW (10/26/15) suggests that the size of the punishment may be to some extent attributed to L’s claiming that he used the backpack full of weed he received as medical m.j. in assisting–or comforting–his dying father.)

Both of these barterings illegal in most states, to be sure, but this is a blawg/blog about client advertising. It is easy to imagine clients making these ads in some hard copy publications–they don’t need to be named; many people already know them–and those pCs who are digitally or cyber inventive might even be able to think up ways to do it on the internet. 

I may have missed something as I pondered these matters. If ads of lawyers are getting worse as time passes–in the sense that more and more of them have less and less good taste–a state of affairs against which at least some pCs will rebel on aesthetic grounds and either (or both) avoid L ads, while further sustaining Ls themselves, or begin issues parodies of them in the form of absurdist art. Of course, tasteful lawyers may try to defend the legal profession by starting to do the same thing.  This would be tasteful lawyers sarcastically sneering and thereby publicly criticizing lesser, lower-class lawyers–something traditionally thought to be contrary to the honor of the profession.  

If the reader thinks that such aesthetic retaliations are entirely inappropriate, look at the easily findable (since “virally” available on the “Net”)  disgraceful and truly wretched TV(?) ads available for the “Texas Law Hawk.” Once these are inspected and evaluated, the rational lawyer will expect humorous pC parodies and conclude that some lawyers will produce responses, at least on social media. 

*Michael Sean Quinn, Ph.D., J.D.

The Law Firm of Michael Sean Quinn et

Quinn and Quinn

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For the uninitiated, the phrase “sleeping with” does not imply that any one was actually asleep, during or together after the “compelled” acts. It is a polite term of art for a type of usually regular stay-over visits.  

Originally posted on 10/21/2015 @ 9:10 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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