Trial Practice - Lawyers' LISTSERVs can be a disservice to clients.
Attorney
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I was a supporter and advocate of lawyer LISTSERV'S. I still am but without proper supervision they are in my opinion being misused. Is this misuse detrimental to the client's interests? I'm not sure; but my gut tells me the answer is yes. I foresaw LISTSERVs as a way for lawyers to join together to share information allowing us to become better advocates for our clients. Also it would be a way to mentor younger lawyers with less experience by those with experience. Lawyers who have had good mentoring in the first five years of practice seem to me to better lawyers later in their careers. Better practitioners and less likely to do stupid things that are unethical. But the lawyer LISTSERV has become a place where lazy lawyers fool themselves into thinking they can get questions answered and avoid associating with more qualified lawyers. I suspect they do this for several reasons, none worthy of discussion because no excuse is good enough for me when the client's interests are being subjugated to the lawyer's.
For those of you who don't know what a LISTSERV is, it's a group of computer users who use email to communicate with the group. Let me give you an analogy. Think of the LISTSERV as a wheel. The computer server is at the hub, sprocket or axle. The users are all out at stations along the rim and tire. When a user sends an email message it goes down the spoke to the hub. The server sitting at the hub then resends the message back out along every wheel spoke to all users in the group. This allows a user to post a single message and to potentially get feedback from several hundred lawyers who make up the group.
So what happened to make it work against the client's interest?
Lawyers are busy and no lawyer has the same experiences as any other lawyer. Younger, older, more trial experience, different life experiences, different success in the court room, some are better at talking with people and attract more clients, personal interests are different, IQ's are higher or lower, some have a better work ethic, others are just plain lazy but want the same level of success as those who work hard. You don't have to be the smartest lawyer to win a case, but you do have to work hard. Resources make a difference. How successful a lawyer has been is usually an indication of the resources he has available to litigate. Good business sense is a quality I would teach younger lawyers. For the most part I'm not talking about the younger lawyers who have partners who are supervising them and who ask a question now and then. The lawyers I'm referring to who misuse the LISTSERV are lawyers with enough experience to know better. They are usually on their own, sole practitioners with a history of taking cases they have no business taking and who regularly settle cases without ever trying one. They advertise themselves as being trial lawyers but have very little trial experience. I once heard a skilled trial lawyer say, "Anyone can settle a million dollar case for one hundred thousand dollars." Those are the lawyers I'm referring too.
Trial associations need to do a better job of monitoring how the LISTSERV they create are being used. I'd make the following changes. I'd assign a trial lawyer who has sufficient experience as the moderator or LISTSERV or webmaster to enforce rules. A LISTSERV is not a place for an inexperienced lawyer for conning your way into a case by feigning experience or getting information to mislead a potential client or existing client. Lawyers have an ethical obligation to associate when they are not qualified to protect a client's legal rights and interests. The LISTSERV answers are in a sense mentoring but just any old mentoring isn't good enough to meet the lawyer's ethical obligation. Good mentoring is what is needed and that implies associating with a qualified lawyer for the entire case.
As for the clients, they need to demand answers from the lawyers they seek to hire. Answers to questions about how many civil trials they've had, the results, when they last tried a case, if they have ever tried a case and if they associate with other attorneys on case that are beyond their expertise. If after hiring a lawyer the client finds the lawyer less than qualified they need to protect themselves by finding one who is qualified. Advertising is a way for lawyers to go out on their own, to break the confines of a big-firm; but it is not an excuse for ethical breaches by practicing quantity over quality.
LISTSERVs need to get their act together. Lawyers abusing the LISTSERV question and answer format to replace experience and ethical obligations need to consider their own liability. Clients have successfully sued lawyers who settled their cases for less than it could due to inexperience and failing to associate. Clients should never be concerned with obtaining a second opinion about their case.
Be aware, be safe and protect your rights.