Litigation Finance, The Oath an Attorney Takes, and Why We Should Consider Shutting Down Second-Tier (and Lower) Law Schools

Litigation finance comes with its set of challenges. There’s the much-argued point that legal funders are (questionably) a step above loan sharks and the service we provide to our customers, well, is actually a disservice. We’ve spent years battling this notion — legal funding companies have received less than positive press, and have been sued, regulated and admonished for what some consider are unsavory practices.

For those of you who have no clue what “litigation finance” is, you’d be wise to push back on me for using that term so broadly. Litigation finance is a diverse field that involves funding companies, consumers, attorneys and other aspects surrounding a judgment. There’s post-settlement funding, pre-settlement funding, primary structured settlements and secondary structured settlements.

I’ll be very frank — I know little about post-settlement funding, the Burfords of the world, structured settlement companies or attorney lending. However, I am intimately familiar with consumer legal funding.

Low-income individuals have a problem that the rest of us typically don’t encounter — they don’t have access to traditional banking. That’s right, over 14 million adults in the U.S. do not have a bank account. You might be wondering, why the hell would someone not have a bank account? Well, a lot of Americans don’t have enough money to justify maintaining one. Though this is a sad reality, it’s a reality.

Enter the world of consumer legal funding. When an individual who is low-income, with a credit score below 550 and lives paycheck to paycheck gets into a car accident, you can bet that he is looking for money. This person is often out of work, injured and unable to pay rent, electricity bills or even put food on the table. You can imagine that the holidays are a busy season for those of us in this industry.

For funding companies, there are primarily two ways of acquiring business. First, you can hire a bunch of sales people and have them schmooze attorneys and paralegals (think, pharmaceutical reps going into doctors’ offices but translate it to the underbelly of the legal profession: personal injury). This is what almost everyone in the industry is doing — legal funding company principals have a very “me too” mentality, and I don’t mean in the sense of sexual harassment (of course that wouldn’t make sense, there are barely any female principals in the industry). I do not use the term, “monkey see, monkey do,” lightly. Individuals in this industry aren’t just “not savvy,” there’s a good portion of them who are completely incompetent (and some with even criminal histories). It’s an industry crowded with middle-aged to old, white men who are happy to glom onto the industry norm.

Now, here’s where the large market opportunity lies: direct-to-consumer marketing. In the early 2000s, Oasis Financial built a national brand by doing what no one else had tried to do previously: target consumers. Oasis leveraged TV marketing and PPC campaigns to inundate the market with their brand. Back in those days, attorneys would not give funding companies the time of day. Oasis had to pivot, otherwise they would need to close their doors.

Attorneys finally began to warm up to Oasis; essentially, Oasis empowered plaintiffs. Plaintiffs started to see this thing called “legal funding” on TV, and the rest was history. Phone calls poured in, plaintiffs begged their lawyers to sign off on the Attorney Acknowledgement (a contract the attorney signs, acknowledging the financing a plaintiff receives) and consumers even fired their lawyers if attorneys refused to sign off on fundings. Democracy was here, and the only place plaintiffs were going was to the next attorney after firing the one who didn’t give said plaintiff the funding he wanted.

I spent the last paragraph talking about attorneys, which leads us down an interesting path. The industry attracts a variety of shady players: disbarred lawyers, convicted drug felons and most notably, a lot of lawyers who went to sub-par law schools.

Many, if not most, attorneys attend law school with the ambition of landing a lucrative job. In the age of exorbitant student loan debt, this is likely more true than ever. Even the lowest-ranked schools are filled with ambitious lawyers who want to make enough cash to live comfortably and provide for their families. Though the legal profession doesn’t come with the prestige of the medical profession, lawyers are an arrogant, prideful group.

Let’s take case-in-point, the infamous, now-disbarred Michael Cohen. Mr. Cohen attended a fourth-tier program, the Thomas M. Cooley Law School. Unsurprisingly, he started his career as a personal injury lawyer in 1992. In 2017, Cohen was sued by the New York State Department of Taxation for $40,000 in back taxes. Cohen also had a small stake in a family-run club in Brooklyn, that was infamous for being a base for Russian-American gangsters. Hold that thought.

In 2007, the Wall Street Journal ran an article about the job-landing capabilities of the law degree in a waning job market for attorneys. You don’t need to be a rocket scientist to know that the prospects were abysmal. To even be considered for big law, it was important to go to a T14 (top fourteen law schools ranked on U.S. News & World Report). Didn’t go to a T14? You better have graduated in the top 5% of your class. You heard right — if you went to a school ranked 20th in the country and didn’t graduate as one of the very top students in your class, you can kiss that big law career goodbye.

Now, think about the folks attending Hofstra, St. John’s, New York Law School or UDC. Not to call any of these guys out, but these institutions are not exactly the Harvards of the world. These are the law schools personal injury attorneys generally attend. Take for example, a real-life example: Attorney X out of Atlanta, Ga. Mr. X attended John Marshall Law School. As a reader, you probably have no clue what or where that is. John Marshall Law School is a fourth-tier legal institution that accepts students who boast a smooth 146–152 on their LSAT, on average. The top quarter of the class brings in a 3.5 undergraduate GPA. Now, this isn’t a bad GPA, but a 3.5 undergraduate GPA for a prospective medical student applying to any U.S. medical school is basically the kiss of death. You better hope you got an almost-perfect MCAT score, otherwise your prospects for a U.S. M.D. education is out the door.

This doesn’t translate to law school, which is potentially the problem. Our profession takes the lowest of the low, folks who received mediocre grades, had mediocre work ethic and were mediocre individuals. These are the folks who are shaping the future of the legal profession. These are the folks who are not paying you back.

I’ve been in the consumer legal funding business since 2016. In that short period of time, you can become an absolute expert in this industry. It’s fairly straightforward — you set a pricing schedule, market to either attorneys or plaintiffs, and watch the business come in. That part is all fairly simple. What’s difficult is the collections, and that difficulty is attributed to the attorney.

Take Attorney X for instance: I’ve worked with Mr. X at not just one, or two, but three companies. My colleagues have worked with him at three or more different companies, and for years. At each company, an attorney needs to sign something called an “attorney acknowledgement.” The attorney acknowledgement affirms the following:

1. I am a lawyer duly-licensed and authorized to practice law in the jurisdiction in which the underlying Legal Claim is being or could be prosecuted.
2. I, Attorney, represent Client on a contingency basis, and acknowledge receipt of Client’s Purchase Agreement. All defined terms contained herein are given the meanings set forth in the Purchase Agreement
3. To the best of my knowledge, medical or other liens (exclusive of attorney’s fees and costs) against the Legal Claim do not exceed $__________________[ATTORNEY TO FILL IN AMOUNT] or have otherwise expressly been disclosed to Looking Glass in writing, and I will remit the Looking Glass Amount to Looking Glass as per the terms of the Purchase Agreement.
4. I fully expect that any Proceeds from the Legal Claim(s) will be sent to me directly and not to Client; I intend that all disbursements of Proceeds will be made through my attorney trust account.
5. I have not, and will not, accept any advice, direction or payment from Looking Glass regarding the Legal Claim.
6. To the best of my knowledge, the above client has not received any previous cash funding on his/her Legal Claim(s), except for the Purchase Agreement(s) with Looking Glass.
7. I will not participate in or facilitate any future cash funding(s) for the above client with respect to the Legal Claim without first ensuring that Looking Glass is paid in full under the terms of the Purchase Agreement.
8. I agree and acknowledge that upon request, I will inform Looking Glass whether Client’s Legal Claim is still pending.
9. Upon Looking Glass’s written or oral request, I will provide other non-privileged information to Looking Glass, such as relevant information regarding the Legal Claim.
10. I will inform Looking Glass upon the resolution of the Legal Claim and request a payoff letter from Looking Glass confirming the Looking Glass Amount as soon as practical.
11. In the event I cease to be Client’s counsel for any reason, I will notify Looking Glass and provide contact information for such successor counsel, and will notify successor counsel of the Purchase Agreement and Looking Glass’s irrevocable right to receive the Looking Glass Amount.
12. The Purchase Agreement will be executed by the Parties and Looking Glass will provide the Purchase Price to Client relying on the fact that I executed this Attorney Acknowledgement.

Every single attorney needs to sign this. Now, many people sign contracts and renege on their promises. However, there’s a different standard for lawyers. The reason for this is because an attorney is an officer of the court, and through their training, they are held to a higher standard. They represent the legal profession, and through three years of legal training, a rigorous bar exam (or multiple), a character and fitness examination (one that’s long and pretty painful), an interview with the bar admission committee and swearing in, one would think that a lawyer does not want to put his ethics in question and potentially lose his law license.

For the lower echelon of the legal profession, there’s a different dynamic at play. In the years I’ve been in this business, I don’t think I’ve worked with more than five total attorneys who have actually attended a first-tier law school. The reality is, if you went to a decent law school, you probably end up a prestigious firms working prestigious jobs. So, how do you make money if you didn’t go to that prestigious law school? You go into personal injury. There’s no promise that you’ll make millions, but if you hit it big with a handful of cases or send enough demand letters to insurance companies, you can certainly make a decent living.

So, what’s my gripe with personal injury lawyers? By and large, most of these guys are not bad. But the amount of self-dealing and dishonesty in the past few years that I’ve seen is enough to really question why a certain brand of attorneys fails to adhere to the oath they once took.

Personal injury attorneys time and again fail to notify funding companies that they’re no longer representing clients or that a case has settled and they don’t feel like going back into their coffers and paying the money owed to us. What’s better, is that upon settlement, a lawyer has no problem sending a short check to a consumer legal funding company. The age of common courtesy has come and gone, and the “going” can be attributed to our friends managing the funds of our clients.

Here’s a new progression in the age of unethical behavior —personal injury attorneys see the lucrative nature of the pre-settlement funding business, and since they know there’s an ethical issue that arises if they were to open up funding companies, they instead offer their brother, sister or wife up as the “face” of the new funding business. They hide behind their families to reap the rewards of an industry they should ethically be avoiding.

This isn’t to say that first-tier law program attendees are perfect — that’s far from the case. There are plenty of crooks from all rungs of the ladder, but there’s no denying that something is lost on a large number of the individuals who promise to serve as officers of the Court and have something to do with a niche industry called consumer legal funding. I’m no longer a researcher, and I don’t have a University behind me to delve into a years-long inquiry, but my hypothesis would start here. Don’t we have enough lawyers and too few law jobs? Aren’t we already the most litigious country in the world? Do we really need another reason to doubt the integrity of the legal profession? The source of the issues surrounding the justice system can be found among the attorneys who created the justice system. The only way we can evaluate the justice system is by looking at the individuals who we allow into the legal profession, and this inquiry starts by looking at our law schools.

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