Moments

[captainsblog]

The posting streak here ended yesterday. Very long day for both of us, collapsed in front of the tv with heated up dinner and left cleanup of the partially drafted entry for this morning, finished at whatever time the post says it posted.

Just a few from my workday Tuesday, abbreviated as it was by the charger installation and the kitty visit. One was nice, one was funny, and one continued my Rage Against the Banking Machine.

I may as well start with that last one, because I heard about it as soon as I got into the office. I have already gone on here about a bad experience I had early last week with another, bigger law firm using a “service” called Positive Pay that is intended to prevent fraud, but wound up having almost horrible unintended consequences for me and a client on a completely non-fraudulent transaction.

Yesterday, I learned that one of my coworkers, who has a separate law firm structure from mine, has decided out of sheer frustration to sign up for the service herself. She is doing this because for at least the second time, one of the legitimate checks out of her trust account got stolen out of the mail, duplicated, and paid out of her account by a criminal who photoshopped it to a different payee. The check was small enough that it didn’t cause any other outstanding checks on her account to bounce, but she practices the kind of law that regularly has multiple six-figure checks to clients and banks coming and going.

When I came in, she was busy writing out a report to her bank of all hundred-plus checks that were then outstanding on her account, so she could preapprove them all before she signed up for the service. Every other check she writes from now on will go into the clutches of this program, and if she does not affirmatively approve any check they flag for any or no reason, her bank will bounce it. She could not commit to the alternative version, in which they will pay any check on the “exception report“ unless you tell them to bounce it, because on some days her office is writing dozens of checks and neither she nor her staff have the time or resources to look at every single one.

I recommended to her that she put some kind of disclosure on her emails or check stubs to warn the recipients people that all payments were subject to this extra level of security clearance. But it also eventually raised an ethical question in my head about this “service” could potentially get us in trouble with the Bar for violating another one of the rules we are required to follow. As I put it in a post earlier to some fellow lawyers:

We all know that only lawyers can be signatories to trust accounts. The bookkeeper can't sign them. The paralegal with the checks at the closing can't. The spouse who really runs the business can't. But can a bot?

Because that, essentially and arguably, is what this Positive Pay mess is doing. The banks are pushing it as an anti-fraud prevention method. What they're doing in practice, though, is handing over signing authority on YOUR trust account to a non-lawyer, and probably to a non-human.

It's not authority to sign the checks, but it's giving it complete veto power over any check you DO write. And when that "exception report" comes in every day, either telling you what checks you have to approve or they'll bounce them (Classic Positive Pay) or you have to disapprove so they'll bounce them (Reverse Positive Pay)? "You" aren't YOU, are you? It's your bookkeeper, or your spouse, or maybe whoever drew the short straw that day to review the report with 300 checks on it.

 I don't want to have to argue the distinction to a Grievance Committee after HAL bounces one of my fully-funded trust account checks, and I don't think you do, either.

Btw, if you don't know what Positive Pay is, as about 80 percent of the lawyers I've talked to about it hadn't? You need to.

♫Let's get ethical. ethical,....♫

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Moving onto the silly-not-silly moment of the day that came between two appointments in the office:

A few months ago, I began looking into whether the medical profession could figure out what to make of the cognitive impairment I’ve been experiencing. I’ve always had some of it, but it seems to be escalating in recent years. It is primarily cerebellum-related stuff. I will think to reach for something in the refrigerator, and instead open a cabinet, or I’ll open the wrong drawer of the two under the microwave. It has never affected driving, or anything where I am actively having to pay attention to things like power tools, and moving lawnmowers, but it seemed a good idea to have it checked out and at least get some baseline information in case it ever gets any worse. The cost so far has been relatively minimal, well within even what my old deductible was, and any treatment will probably not begin until the magic date of Medicare in November.

Already I've done bloodwork, a home sleep study and an MRI. The phone interview with the psychologist was in between my appointments on Tuesday.

No, I didn't forget it.

Besides the family history and other stuff I've already given them three times, there was a small amount of actual testing. Did I know what mmddyyyy it was? What did I think a certain proverb meant? But then the one relevant here: she actually asked if I knew who the president was.

Ummmm, I hope it's still Joe. I'm at work and haven't checked the news all day. But Kamala would be fine, too.

Did I know the one before him? Do I have to say? Can I go with "He Who Must Not Be Named?"

And before HIM? Just so I don't throw your stats off, I play trivia. I can name all 46 in reverse order.

I got to Ford before she made me stop.

Thank you. Nixon would have been next, and I'm in a bad enough mood already.

She then scheduled me for some final follow up testing in their office early next month, and then I’ll have a much better idea of what, if anything, is going on.

----

Finally, from the funny, we moved to the downright nice.

My final appointment of the day was with a client who I’ve been defending from a lawsuit by a former attorney for allegedly unpaid legal fees owed to her. Unpaid and undeserved. The attorney who finished his case, who referred the defense secondhand to me, used the word “egregious“ to describe what this previous lawyer charged him.

That lawyer, the good one, finished his matrimonial case with good results for around $2,500. The previous one had already bilked him for more than five times that and brought this lawsuit to be paid even more. Although I’ve never met the lawyer who referred the case to the other lawyer in my office, I do vaguely remember the one he had originally. She was a year behind me in law school, and we had a few classes together, probably in third year for me, second for her when we got to take electives. I remember her being older, one of the cohort of mostly women who decided to try law as a second or third career later in life. Many of them went on to have admirable legal careers. I don’t think she was one of them, because every time I mention her name to another attorney about the case I’m handling,  they react as if I had used the name Frau Blucher.

Maybe I should ask a horse to confirm that.

 Needless to say, she and I were never friends at the time, and since I don’t practice in matrimonial law, our paths have never crossed over the years until this blunderbuss attempt to get more money out of him. By all accounts, her family is as rich as shit, and she seems determined to get every penny out of as many of the “little people“ as she can.

She started this case with a Buffalo attorney who I know a little, eventually she got rid of him (or possibly the other way around) and she represented herself for about two minutes, and then she finally wound up with a collections attorney in my old Rochester office from more than 30 years ago. Since divorce attorneys are required to offer fee arbitration to their clients, I got the case out of court, and we agreed to have the bar association arbitrate it.

But which one? He lives, and she practices, in Niagara County, which does not have a fee arbitration panel set up and refers them to Buffalo. Our bar association wouldn’t take it because the dispute was too old and/or too big. Since her current lawyer is in Rochester, and I was working with the chair of their fee arbitration panel on another matter, I got him to agree to take it. It took quite a while to schedule it, but it finally came down that it will be next Monday in the bar association offices in the East End of downtown Rochester.  Like many, he thinks the Batavia exit on the 90 amounts to BEYOND HERE BE DRAGONS, so I am going to drive ahead of him to a Park and Ride about 10 miles out of town and take him into the hearing from there.

I've been careful not to overbill him in a case about overbilling. He had only been invoiced for about $2,500 of my over $4,600 of time through last year, the rest of it discounted. Earlier in the month, when the date next week finally got set, I invoiced another $750 covering almost a year of my time, down from over $1,300 at the strict hourly rate. He was not happy about having to pay money to not pay money, plus had to take next Monday off from work and that was a problem, but he reached into his wallet and pulled out a freshly printed (hopefully not by him;) stack of Benjamins totaling $1,000.  That's more than the bill, but he knew Monday would cost him; I'd already told him I would not charge for traveling there or back because I could do other things once I got there, but when he said out loud that he wished he could've put that grand toward a roof repair back home, I did the right thing: I peeled off the top two hundreds and handed them back to him.

He wouldn't take them. I deserved it, he said.

Compare that to the clients I have to hound to the ends of the earth to get paid, and the other clients who give me shit even when I'm not actively billing them, not to mention the idiot lawyers bouncing trust account checks on me,....and it came as a welcome relief. It's the kind of person who makes me keep at this job.