Posts tagged law
Let's Start a Nonprofit Law Firm

We settled a case yesterday and I want to tell you about it. Almost two years ago, we sued a car dealer for wrongfully repossessing our client’s car. Yesterday, our client went to pick up that car, which she will own free and clear instead of paying 25% interest on the buy-here-pay-here auto financing. Additionally, over the next two and a half years, my client will receive a few thousand dollars and my firm will recoup a little over $10,000 in attorney’s fees and expenses. 

Let me say thank you to some people who need thanking by making a couple of points about this settlement. Then, I want to tell you about a nonprofit law firm I’m starting in 2017 called Commonwealth Justice. 

First, this repossession had a huge impact on my client’s life. Like many people, when my client lost a reliable form of transportation, it set off a cascade of negative consequences in her life. Because she lost her only car, she could no longer hold down one of the two jobs she was working at the time. Because she lost one of her two jobs, she wasn’t able to make rent and had to leave her apartment. For a year, she lived with her minister and his family. She wasn’t able to transport her daughter to the far-away clinic to treat a chronic medical condition. Wrongful, abusive repossessions create huge problems in individual’s lives and—based on the number of people we have contacting my firm—are a widespread problem in our state. 

This settlement doesn’t come close to compensating my client for the violent upheaval this repossession caused in my client’s life. But, collection of a larger sum from the dealer was going to be challenging and, as in most settlements, we weighed the value of the prospect of recovering more money later versus some money in the near future and decided the risk of pursuing a larger sum of money wasn’t worth the benefit. 

The only way we were able to get this case settled is because Josh Goodnewt did an outstanding job getting summary judgment granted in our client’s favor on her Truth in Lending Act claim and having the Defendant’s counterclaims for fraud and breach of contract thrown out with a separate Motion for Summary Judgment. Josh is a brilliant, thorough, passionate attorney and I miss him every day. 

Are you kidding me? 

Are you kidding me? 

The only way that we are able to afford to settle cases in a way that spreads out the payments to my firm over two and a half years is because I  have a wife with a steady job and health insurance benefits. In other words, without Sarah, I don’t have the luxury of a) reducing the amount of attorney’s fees I recover and b) agreeing to accept that amount over two and a half years. Sarah makes Ben Carter Law possible and anyone who likes the work that we do needs to know that it doesn’t happen without her. 

Now, to Commonwealth Justice: 

We need more people working on behalf of consumers in Kentucky and defending them from debt collection abuse, unscrupulous landlords, reckless mortgage servicers, and car dealers that put profits over people.  

I have had a lot of opportunity as a Legal Aid attorney and as a private attorney to reflect on why more attorneys do not practice in the area of consumer law in Kentucky. I think there are two main reasons. 

First, consumer law is a challenging area of law. Lots of federal statutes. Lots of regulations. Lots of math. It’s not easy to gain the substantive knowledge you need to succeed in this field. Most people can only do it by—like me—starting at Legal Aid. 

Second, even if they learn the law, not many attorneys have the financial ability to defer payment on a case over the course of two and a half years. I can do it because UK gave me a scholarship to law school and I have a beautiful wife with a steady job. 

Nevertheless, my experience with Ben Carter Law over the last four years proves that consumer attorneys can make money in Kentucky. Last year—the fourth full year of Ben Carter Law—we had enough money to pay modest but nontrivial salaries to Josh and me and for the briefest of time employed a paralegal, as well. We may need to be flexible in how we settle some cases and sometimes cash flow is challenging, but—over time—it is possible for attorneys to make it in this area. 

So, the way I see it: the two main barriers to entry into the consumer law field are 1) lack of opportunity to learn the substance of the law and gain litigation experience and 2) the inability, at the outset, to make the financial tenuousness of a consumer practice work.   

Over the next few weeks and months, you will hear more from me about Commonwealth Justice, a nonprofit law firm I am committed to start in 2017. My hope is that this nonprofit law firm will address both barriers to entry for attorneys wanting to get started in consumer law. By raising funds from individual donors and with grants from foundations, I hope to be able to provide attorneys with the opportunity to develop substantive experience in consumer law. Over time, the goal will be to supplement the organization’s budget with the recovery of attorneys fees in many of our cases. Meanwhile, the support from our donors will provide us the runway necessary to get this plane off the ground. 

Over time, I believe that an organization like Commonwealth Justice can be a game changer for low- and middle-income Kentuckians whose financial or familial stability is threatened by a wrongful repossession, an abusive debt collector, or a corner-cutting landlord. By expanding the number of attorneys working in this field, we can expand the number of people we help, the number of cases that go to trial, and the number of cases that establish valuable precedent to guide the conduct of business owners around the Commonwealth. 

So, stay tuned. And, if you’re interested in helping in any way, I’m easy to find.  

Week in Review: Banditry, Funerals, and a New Solo

Expect the Best, Plan for the Worst

Well, in two separate incidents on Wednesday and Wednesday night, Ben Carter Law had a laptop (mine) and TV (ours) stolen from our storefront. Huge bummer. But: we were able to erase the data on the computer remotely and restore from a recent backup when I got another computer on Thursday. I'm telling you this so that you can plan ahead so that a lost or stolen computer doesn't derail your practice. If you are in the Apple ecosystem, make sure your devices are signed up for the "Find My iPhone" service. This allowed me to lock and erase the stolen computer within minutes of its theft. It also allowed me to trace its location to one of two houses not far from our office. Second—and I can't stress this enough: keep recent backups in separate physical locations. I also use BackBlaze to backup to the cloud. An off-site backup and cloud backup: this is the "belt-and-suspenders" approach to backup that your data deserves. 

With a recent backup and cloud storage of our files, I lost no data and almost no momentum in what could otherwise have been a crushing loss. 

Needless to say, we're getting some extra security for the office. 

We actually have good information on who stole the computer. When things go missing around this time of year, I always point the finger first at these two. 

So, while I'm hopeful that we might recover the computer at some point, the TV is like dropping your keys into a river of molten lava. Man, it's gone. 

The courage to fix the things we can

The husband of one of my favorite clients of all time passed away this week. She texted to tell me the funeral arrangements, so I went. At the funeral, both she and her son expressed profound gratitude for our help in negotiating the the mortgage company an alternative to foreclosure. They explained that our help allowed their dad and husband to spend his final months in the comfort of his home and with the knowledge that the home was secure from the threat of foreclosure. 

At my firm, we are confronted daily with a lot of injustices and requests for help from a lot of people. This funeral was a much-needed flotation device in a swirling flood and was a reminder to me that it is not our job to fix every problem. It is only our job to fix the problems we can. Everything else is up to that higher power.

Peter Brackney goes solo

I was happy to learn this week that Peter Brackney has set up his own practice in Lexington. Peter is a great guy to follow on Twitter and will be working in the areas of consumer bankruptcy, business law, and estate planning. 

Do as Greg Belzley does

My friend and an attorney I admire a lot, Greg Belzley, was quoted in the Herald-Leader this week in a story about the state's failure to supervise the medical providers with which it contracts to provide care to Kentucky's prisoners. The situation is appalling and Greg is one of the leading advocates—inside and outside the courtroom—to change the callous, uncaring, inhumane treatment these human beings receive. 

Greg is a shining example of the good work a person of conscience can do when armed with a law license. We should all take a note. 

Defining "Consumer Law"

When people ask me what I do, I usually tell them, "I make bad jokes on the internet." When they ask me what I do for money, I tell them I'm a consumer lawyer. If they're not too proud to admit to not knowing what consumer law is, they'll ask, "What is consumer law?" 

Here is a little mailer I sent out to fellow lawyers last year explaining what kinds of cases I handle as a "consumer lawyer".

Somehow, though, I think that just describing the kind of work that consumer lawyers do and the kinds of cases they take misses the point a bit. It gets to the what, but not the why of consumer law. 

But, I recently had the opportunity to speak to about a hundred newly-minted attorneys at the KBA's New Lawyer Program about Kentucky consumer law. My Lebowski-themed presentation about consumer law touched on many of the same areas I listed in the mailer: the Kentucky Consumer Protection Act, debt collection abuse, insurance bad faith, auto fraud, the Kentucky Lemon Law, etc. 

Before I ran through those specific state and federal statutes protecting consumers, though, I gave Kentucky's newest lawyers my freshest take on what consumer law is. I told them that being a consumer lawyer means applying all of your skill, training, and heart to the legal problems that impact low- and middle-income Americans. It means using the laws (common, local, state, and federal) to protect the bottom lines of the most fragile budgets in America. 

Rather than defining consumer law as a kind of case or a particular set of statutes, I want to broaden my definition of consumer law to "practicing law with the goal of helping low- and middle-income American families achieve and sustain financial stability". 

This definition allows me a broader self-concept of "what I do", aligns me more explicitly with the work of allies seeking those same ends through lobbying and public education efforts (rather than my more litigious efforts), and provides me a "North Star" when charting the work I want my firm to do. way forward for my firm. helps me evaluate the direction I want to take my firm. Anything that threatens the financial stability of economically vulnerable people—foreclosure, eviction, abusive debt collection, auto fraud, unfair or misleading business practices, repossession, bad faith claims adjusting from insurance companies—that's what I fight.

Practicing with a goal of helping people avoid the threats to their bottom line motivates me to pay attention to the evolving landscape of threats out there. Every year, it seems, there's a new problem, whether it's vacant and abandoned property, unpaid tax bills on real estate, starter interrupt devices on cars. There's a scammer born every minute. 

Practicing consumer law is much, much broader than using the statutes we typically think of when we think of "consumer law" statutes. It means aligning yourself with  economically fragile families and individuals and using the best, bravest version of yourself to defend them from the flinty-eyed predators stalking your clients and senseless corporate machinery that will consume them without ever thinking once.

"As a lawyer, you are at the very center of that possible change."

I've been meaning for a while to write about lawyering as the closest distance between words and change. Then, on a recent episode of Let's Start a Law Firm, I accidentally spoke what I had been intending to write. Being a lawyer is awesome and if you're one who happens to love words, it's even awesomer. 

This two minute clip pretty much says it all. 

To be a little (more) self-involved, here are my favorite moments:

"Bank accounts get smaller and they get bigger based on the words that we put on pages."

"I was an English major because I think writing is important and that it can change the world. As a lawyer, you are at the very center of that possible change."  

I feel very grateful to all of the teachers and friends in my life that helped me get okay at writing and at least appreciate that the serial comma matters. 

If you're a lawyer, you owe it to yourself and your clients to become and remain curious about words and writing. They are, often, all we've got and, miraculously, all we need to change the world. 

Why I Support Judge Jim Shake for Kentucky Court of Appeals

The reality of judicial races is that people who work outside our legal system feel ill-equipped to cast an informed ballot. I'm often asked by my non-lawyer friends who they should vote for in judicial races. In the Court of Appeals race in Jefferson County, I suggest a vote for Judge Jim Shake

Photo.png

Judge Shake is a smart, pragmatic judge that works hard and takes risks to ensure that everyone has access to the court system and that the courts are solving problems. I know. In 2009, as the Chief Judge of the Jefferson Circuit Court, Judge Shake worked with advocates for homeowners (I was an attorney for the Legal Aid Society at the time), bank attorneys, community groups, and the court system to create the Foreclosure Conciliation Project. With the FCP, Jefferson County became the first court system in the state to attempt to address the exploding numbers of foreclosures in our community.

As part of the project, Judge Shake ensured that each homeowner facing foreclosure received credible, timely information about alternatives to foreclosure and steps to take to avoid foreclosure. The FCP provided homeowners with outreach, housing counseling, legal representation, and an opportunity to meet with their banks to pursue these alternatives. Hundreds of homeowners saved their home through the process that Judge Shake created and the lessons we learned in Jefferson County have influenced similar programs across the state.

Judge Shake has been a judge for 19 years. He knows the immense impact the courts have on Kentuckian's lives. The courts impact lives not just in individual cases, but also in the processes and procedures they build to solve emerging problems like the foreclosure crisis. I'm supporting Judge Shake because he has shown the willingness and ability to solve problems—big and small—as a judge.