A good reminder about why keeping original wills is not such a great idea. For more information, see the PLF File Retention Guidelines at http://www.osbplf.org > Practice Management > Forms > File Retention Guidelines and read our In Brief article “Why Did We EVER Want to Keep Original Wills?”
What kind of performance do you expect in a laptop? Do your “must haves” include:
- Fast startup
- Applications that load quickly
- Long battery life
- Top-notch camera and display
- Built-in hard drive encryption
- Built-in password management
- Automatic security screening for downloaded apps
- No preinstalled adware or spam
- Ability to run locally installed office productivity software
- Preloaded productivity and creativity apps
Aren’t Macs more costly? It depends on your point of view. In the short run, a 15-inch MacBook Pro with Retina Display starts at $1999, but in the long run I doubt you’ll regret the features or investment in quality. In this age of security issues, privacy concerns, and data breach worries, the free (and incredibly easy to use) hard drive encryption is reason alone to pic a Mac.
Even Before Superfish Lenovos Weren’t the Greatest
Just before the Superfish adware/spam scandal came to light, my husband decided he wanted a new laptop. He thought he found a great deal on a Lenovo that had a reasonably fast processor and a decent graphics card.
- It was incredibly slow to boot, a long-standing problem for Windows OS. [For kicks, compare the discussion about boot times on Apple Support Communities to this thread on Microsoft Community. The Apple folks are miffed about waiting 30-60 seconds; the Windows users are experiencing delays of 20+ minutes. It’s all about perspective.]
- The apps were slow to load.
- He detested Windows 8.1.
- The keyboard started acting up. Specifically, the Windows Logo Key developed a mind of its own. It worked only when it felt like it.
- The touchpad was a pain.
- He didn’t like the camera.
Why did he buy the Lenovo in the first place? In part, because a family member (not me) swayed him in that direction. He also thought he needed a laptop running Windows OS to meet specialized software needs. (Incorrect.) This is old news, but let me reshare: users can run any Windows program using Mac’s Boot Camp utility.
From the moment my husband opened his MacBook Pro with Retina Display, he’s been in love. And kudos to the Apple Store personal setup station – they helped configure the hard drive encryption, iCloud keychain, iCloud drive, and other settings. (You won’t get that help anywhere else.)
I Told You So
I’ve said it before: Once You Go Mac, You Never Go Back, so why would you fuss with a Windows OS laptop to begin with? I am an even greater fan of Mac now after my husband’s experience. If I left my job today to reenter private practice, I’d buy my own MacBook Pro in a heartbeat. (P.S. Office 365 runs like a dream.)
Can it Get Any Better? Yes it can!
One of the best parts of using a Mac in the law office is Macs in the Law Office (literally). MILO is 4,500+ members strong and “the premier source for lawyers who want to maximize the use of Macs in their law practices.” Great people like Ben Stevens (aka The Mac Lawyer) and Jenny Stevens (Mrs. Mac Lawyer) have made it happen. Bottom line, nothing holds you back when you’re a Mac user.
[All Rights Reserved 2015 Beverly Michaelis]
Get the low-down on new ethics opinions issued in Washington State: Opinion 201401 – Participating in Online Lead Generation Services to Garner Clients and Opinion 201402 – The Ethics of Using Online Social Media Profile Websites Like Avvo.
Originally posted on NWSidebar:
Two new advisory opinions have recently been posted to help attorneys follow the RPCs while navigating the Internet. Take a look at these to steer clear in the areas of social media and Internet marketing.
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In October of 2014, the PLF added At the Corner of Law Practice and Disability to its collection of CLEs available on the PLF website.
This program discusses EEOC and ADA requirements; work at home/telework as a reasonable accommodation; practical ways a small firm can accommodate an attorney with disabilities; ethical concerns and best practices for lawyers who have an unplanned medical emergency; resources for attorneys with disabilities; and social security disability. Speakers included Amber Bevacqua-Lynott, Cheryl Caon, Melissa Kenney, Kendra Matthews, Lisa Porter, Helle Rode, and Camilla Thurmond with special content provided by Alice Plymell.
Kudos to Oregon Women Lawyers for sponsoring this CLE. It raised awareness, offered concrete resources, and generated some interesting questions. Here is one that occurred to me:
What happens at the Corner of Disability and Mandatory eCourt?
Consider this scenario: Lawyer A is visually impaired. Using an interactive website, such as Oregon’s Odyssey eFile & Serve eCourt System, is difficult if not impossible. What can (or should) Lawyer A do?
First Order Issues
It does not appear that the eFile & Serve website can be used by impaired users. Searching “Self-Service Support” on the Odyssey eFile & Serve website produces this less-than-clear result:
Article #4263 Does your website work with accessibility programs for impaired users? – KB4263. In general, an information technology system is accessible to people with disabilities if it can be used in a variety of ways that do not depend on a single sense or ability. For example, a system that provides output only in audio format would not be accessible to people with hearing impairments, and a system that requires mouse actions to navigate would not be accessible to people who cannot use a mouse because of a dexterity or visual impairment. Section 508 focuses on the overall accessibility of electronic and information systems, not on providing accommodations at individual worksites. Individuals with disabilities may still need specific accessibility-related software or peripheral devices to be able to use an accessible system.
[All Rights Reserved 2015 Beverly Michaelis]
Calling all Oregon lawyers: are you taking advantage of your right to file a “notice of termination of relationship?”
ORS 9.380(2) was amended in 2011 to allow withdrawal by filing a simple notice, provided two conditions are met. First, the case must be concluded, meaning a final determination or judgment has been entered. Second, all services required of the lawyer under the fee agreement must be complete.
“The relationship of attorney and client may be terminated after the entry of a judgment or other final determination in an action or proceeding by the filing of a notice of termination of the relationship in the action or proceeding. The notice must be signed by the attorney and must state that all services required of the attorney under the agreement between the attorney and the client have been provided.”
The amendment eliminates the step of filing a formal motion with the court.
Why You Should File Notices of Termination
Take advantage of ORS 9.380(2) at the conclusion of your cases. File a notice of termination and remove yourself as attorney of record. This is especially important in practice areas where matters could reopen or require future steps. Family law is notorious for post-judgment activity (contempt actions, modifications, and the like). Criminal law practitioners may or may not be responsible for filing motions to dismiss when a one-year diversion agreement is completed. If your agreed-upon services do not include filing the dismissal, withdraw. ORS 9.390 makes clear you are on the hook until the notice is filed:
“When an attorney is changed, or the relationship of attorney and client is terminated, as provided in ORS 9.380, written notice of the change or termination shall be given to the adverse party. Until the notice is given, the adverse party is bound to recognize the former attorney.”
Comply with the Rules of Professional Conduct
Satisfying ORS 9.380(2) isn’t the only step. You must also comply with the Rules of Professional Conduct. Oregon RPC 1.16(d) provides:
“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers, personal property and money of the client to the extent permitted by other law.”
At the conclusion of a case, the timing issues may be less critical – assuming the client does not wish to purse an appeal – but the remainder of the rule must be followed. To learn more about this topic, and how to properly disengage, see: How to Fire a Client.
[All Rights Reserved 2015 Beverly Michaelis]
If you rely on Microsoft Word to generate legal pleadings, download this patch.
Originally posted on CompuSavvy's Word & WordPerfect Tips:
Microsoft has issued a “hot patch” for Word 2013 that fixes, among other things, a major issue for law firms and other organizations that use lined and numbered pleading paper for their court documents. The issue, as I understand it, was that the ability to tweak the pleading line spacing by using the “Suppress extra line spacing at top of page” configuration option was not available for files saved in the (now standard) .docx format. (This option, located under the Advanced Word Options > Compatibility Options > Layout, had been available in both Word 2007 and Word 2010 regardless of whether the file had been saved in .doc or .docx format.) The lack of that option made it difficult, if not impossible, to align text with the pleading line numbers in certain documents and templates.
The patch, which Microsoft issued yesterday (February 10, 2015), restores the missing option in Word…
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Online referral services can be a good source of business for lawyers entering private practice. And the pitch is often tempting: “Sign up with us and you’ll get all the clients you want in [your practice area]. You will be the only lawyer in [your state] to receive referrals from us.” Scads of clients. Exclusivity. Sounds good, doesn’t it?
Bar-operated programs aside, you should take the time to scrutinize offers from for-profit online referral services. Potential traps abound:
Paying a fixed annual or other set periodic fee not related to any particular work derived from a directory listing violates neither RPC 5.4(a) nor RPC 7.2(a). A charge to Lawyer based on the number of hits or clicks on Lawyer’s advertising, and that is not based on actual referrals or retained clients, would also be permissible. Helen Hierschbiel, Internet Marketing: Rules of the Road.
The key here is that the fee and the work are not connected. The typical referral service gets this right, but make sure you understand how fees are paid and what conditions apply. To learn how you might run afoul of the fee sharing prohibition, see Amber Hollister, What Hath the Web Wrought? Advertising in the Internet Age.
Odds are you’ll be required to report back some kind of tracking data to the online referral service. Assuming this includes only benign information, such as a client identification number, there is no breach of confidentiality. Services vary, however, so learn exactly what must be reported and why.
…Internet-based advertising is governed by the same rules as other advertising. The basic ground rule is that advertising cannot be false or misleading. See RPC 7.1(a). Because Web pages may be viewed by persons outside of Oregon, lawyers must take care to ensure the advertisement identifies the jurisdictional limits of their practices. Furthermore, while lawyers may include their names in directories or other advertising Web pages, they must not allow a directory to promote them using means that involve false or misleading communications. RPC 7.2(b). Lawyers are responsible for content that they did not create to the extent they know about that content. Helen Hierschbiel, Internet Marketing: Rules of the Road.
Some online referrers advertise that the lawyers in their network are “Verified.” They give lawyer-members “Verified” logos or other graphics to place on their websites. This begs the question: what does “Verified” mean? By whom? How? When? Unless this statement is adequately explained, it could be considered false or misleading.
Puffery in numbers
If the online referral service is suggesting you should sign up now because they have a gazillion clients waiting in the wings for a lawyer in your practice area, probe that representation. Ask for numbers, demographics, and details. If the clients really exist, they should have the information to back up the statement. How many clients do they anticipate referring to you each month? What is the basis for that expectation? How will they ensure the flow of future clients?
Puffery in other ways
Some online referral services tell lawyers they’ve been approved or vetted by a bar association. Designed to give peace of mind, this statement is more than a little suspicious.
While a referral service may have done its homework to investigate the rules in Oregon, and may have contacted the bar to learn more about the rules, this does not constitute “approval” of the program. To my knowledge, the bar does not engage in such a process.
If you are approached by a referral service that implies it has been approved by the Oregon State Bar, contact the Oregon State Bar to verify this representation.
Some services promise exclusivity: sign with us and you will be the only Oregon lawyer to receive referrals in your area(s) of law. You should be especially skeptical of this representation. Get it in writing and carefully investigate any potential exceptions or loopholes.
General reputation, references, and complaints
Minimally, run a Google search. Look beyond the first page of results. Read any articles, reviews, or posts about complaints that mention the name of the service. The BBB or like organizations can be a good source of information.
Also take the time to check references. Ask for the names of other Oregon lawyers who have been using the service for at least six months.
Make sure you understand the cancellation terms. You don’t need a nasty surprise if you decide to get out. Initial set-up fees are likely to be nonrefundable, but check.
The PLF has an excellent set of marketing practice aids which include a business development goal checklist, sample marketing plan, and marketing worksheets. Download these resources at Practice Management > Forms > Marketing on the PLF website.
Many of the issues related to online lawyer referral services are ethical in nature. Don’t hesitate to contact the OSB General Counsel’s Office when in doubt.
All Rights Reserved  Beverly Michaelis
Attorney General Ellen Rosenblum is urging the Oregon legislature to update Oregon’s data breach law:
“Data breach and the distribution of personal information is a growing risk for Oregonians. Nationally, data breaches in 2013 exposed an estimated 546 million piece of personal information. The Oregon Identity Theft Prevention Act of 2007 requires businesses and governmental agencies to notify consumers of digital data breaches and develop safeguards for personal information but provides no protection for medical, insurance or biometric information. By extending enforcement power to the Oregon Department of Justice, Oregon will be able to use the effective enforcement tools of the already-existing Unlawful Trade Practices Act .” Read more here.
Track the status of legislative action on this issue and in other areas that affect your practice by using the Oregon State Bar 2015 Regular Session Bill Tracking tool.
The 2015 Oregon State Bar Law Improvement Proposals are found here. The 2015 Oregon State Bar Legislative Priorities include improvements to court funding in general, eCourt funding in particular, and legal services to the poor. Read more here.
Oregon eCourt is nothing less than revolutionary. It is transforming how we file pleadings, meet deadlines, pay filing fees, and access court documents. For those who were hoping to retire or transition to another career before eCourt became mandatory, the change is especially rough.
Initially, eCourt requires an investment – buying a scanner and purchasing software. It also demands that lawyers learn new technology and adapt to changing court rules and practices.
If you are on the cusp of making a transition away from the private practice of law, but fall within the boundaries of mandatory eCourt, you may want to delegate this task – or find an eFiling lawyer buddy. Before you do, consider the following:
Is it ethically permissible to delegate eFiling?
Short answer: Yes, qualified. (Read the remainder of this post.)
Whether you use an eFiling lawyer buddy (contract lawyer who tends to the eFiling responsibilities of the case) or a non-lawyer staff person, you have the right to give others access to your eFiling account.
On November 19, 2014, I co-presented the OSB-PLF CLE, Oregon eCourt Update, with Daniel Parr from the Oregon Judicial Department (OJD). At that CLE, the following questions were posed:
Q: Should an assistant be the Administrator and then the Attorney be under that same registration? Or should a legal assistant have a separate account?
A: In general this decision is up to you. Your group should register as a firm or as a unit on the system, even if you are a solo practitioner. You can choose who to assign as a firm administrator, and this can be multiple individuals. Some firms have chosen to have staff log into attorney accounts, and other firms have chosen to have the staff set up accounts directly.
Q: Are there any ethical issues with having non-attorney staff handle filings?
A: Staff are permitted to assist with this process, and non-attorney staff are already eFiling on behalf of attorneys. Obviously it is up to the attorney to review and supervise any work done by non-attorneys, and the attorney is responsible for the result.
While we did not explicitly receive a question about using a contract lawyer to handle eFilings, the result is the same – contract lawyers (eFiling lawyer buddies) are permitted to eFile on behalf of the attorney of record. As attorney of record, it is up to you to supervise your eFiling lawyer buddy, and you are responsible for the result. There are some other considerations, discussed below.
Is it possible to avoid eFiling entirely?
Short answer: Yes, upon “good cause” shown, with the court’s permission. Any lawyer can apply for a waiver of the eFiling requirement. The waiver may apply to an existing (singular) case (UTCR 21.140(3)(a)(ii)) or all cases in a given judicial district for a specific period of time. (UTCR 21.140(3)(a)(i)). Lawyers seek a waiver for an existing case by filing a motion; for all cases in a specific judicial district by filing a petition.
If the court grants a petition waiving the eFiling requirement in a specific judicial district, “the person obtaining the waiver must file a copy of the court’s order in each case subject to the waiver; and include the words “Exempt from eFiling per Waiver Granted [DATE]” in the caption of all documents conventionally filed during the duration of the waiver.” (UTCR 21.140(3)(d) and (e)).
Using an eFiling lawyer buddy (contract lawyer)
If you decide to use a contract lawyer to eFile your cases, follow these guidelines:
- Put it in writing. As with all contract lawyering arrangements, document in writing the scope of the agreement, method of compensation, and other details. For assistance with establishing contract lawyering relationships, see the checklist and documents available from the Professional Liability Fund (PLF). On the PLF website, select Practice Management > Forms > Contract Lawyering.
- Assess PLF coverage implications. If the eFiling lawyer buddy is claiming an exemption from PLF coverage, he or she cannot operate independently and “take over” eFiling responsibility. Contract lawyers who are exempt from coverage must function under PLF guidelines. (For details, visit the PLF website. Select Assessments & Exemptions > Exemptions, then “Law Clerk/Supervised Attorney Not Engaged in the Private Practice of Law.”)
Your eFiling lawyer buddy is likely to be safe if she restricts her role to that of an assistant or secretary: uploading documents at the attorney of record’s direction, following the attorney of record’s instructions in selecting a filing code, etc. The more independent your eFiling lawyer buddy becomes, the more likely she could be viewed as acting beyond the scope of the PLF contract lawyering exemption (if in effect). The simple workaround: your eFiling lawyer buddy (aka contract lawyer) can obtain PLF coverage for more freedom in executing her duties.
- Understand the acceptance/rejection process. As you define the scope of the eFiling lawyer buddy’s responsibilities, consider who will be responsible for processing and responding to acceptance and rejection notices issued by Tylerhost.net. (Oregon’s eCourt vendor.) For example, if the attorney of record eFiles a complaint on the day the statute runs and her filing is rejected, who will refile and seek relation-back?
It stands to reason that each time an eFiling lawyer buddy files a document for the attorney of record, she needs to be engaged and available to assist with the filing until an acceptance or rejection notice is issued. This can take up to a week. Specific terms should be added to the written contract lawyering agreement that address the eFiling lawyer buddy’s responsibility in rejection situations. (Note: the attorney of record can instruct her eFiling lawyer buddy to add himself as a contact in order to receive acceptance/rejection notices generated by Tylerhost.net.)
- Understand the court notice process. Some lawyers who are tempted to hire an eFiling lawyer buddy might be operating under the misapprehension that they can completely avoid all associated technology. However, court notices from the Oregon Judicial Department are sent only to the “filer,” in this case, the attorney of record. The attorney of record is responsible for reviewing and acting upon court email on a timely basis.
- Limit account access. By necessity, an eFiling lawyer buddy will need access to the attorney of record’s eFiling account (Odyssey) operated by Tylerhost/Tyler Technologies. But this access can (and should be) limited in writing. The eFiling lawyer buddy should only use the attorney of record’s eFiling account as needed, and at the express direction of the attorney of record.
- Limit credit card access. Ideally, the attorney of record will create the eFiling (Odyssey) account and enter the credit card information needed for payment of filing fees. If the attorney of record needs assistance, she can call the Tyler Technologies support number and/or use the “GoToAssist” feature, allowing Tyler Technologies to take control of her computer to establish the account. This limits the eFiling lawyer buddy’s access to the attorney of record’s credit card account information. Once the credit card information is entered, the eFiling lawyer buddy simply selects the payment account to pay filing fees. If the eFiling account is configured properly, the eFiling lawyer buddy will not be able to see the credit card information. The attorney of record should be the “administrator.” The eFiling lawyer buddy should be a “user.” Support staff at Tyler Technologies can help attorneys of record set up accounts using these distinctions.
To further protect herself, the attorney of record should dedicate a specific credit card to use in paying eFiling fees. By establishing a credit card solely for this purpose, it will be very easy to spot whether there is any inappropriate activity on the account. The only charges that should ever appear on attorney of record’s billing statement are filing fees payable to OJD.
- Provide proper supervision. Regardless of how duties are divided, the real responsibility here still falls on the attorney of record. This scenario presumes that the eFiling lawyer buddy’s role is to act only as a technical specialist. The attorney of record must be sure at all times that eFiling lawyer buddy is doing his job. The eFiling lawyer buddy is not responsible for the content or accuracy of documents filed; nor is it eFiling lawyer buddy’s responsibility to monitor filing deadlines.
- Be aware of ethics traps in determining compensation. The attorney of record can cover the cost of using the eFiling lawyer buddy out of his own pocket as a cost of doing business. If the attorney of record intends to bill clients for eFiling lawyer buddy’s services, the clients must consent. The attorney of record should update his client fee agreements accordingly. (Beware the limitations of modifying a fee agreement midstream – see OSB Formal Opinion 2005-97.)
Alternatively, the attorney of record could also barter services in exchange, but should check in with OSB General Counsel about the ethics of such an arrangement.
If the attorney of record plans to split her fees with the eFiling lawyer buddy, she must comply with the Oregon RPCs requiring disclosure and consent of the fee split to the client.
[All Rights Reserved – 2015 – Beverly Michaelis]
Do you keep a complete copy of your client files? If not, does your reasoning fall into one of the following categories:
Let’s consider these arguments individually.
Rationale: I don’t want to store the paper
Agreed! I don’t blame you one bit. Talk about inconvenient!
- You could keep files at home, but no one wants to do that and some of us don’t have the space.
- You could keep files in your office, but it can look like a clutter bomb went off.
- This leaves the expensive option: keeping files off-site.
Solution: Scan your closed files
The easiest solution is to stop adding to the problem. Resolve to scan your closed files starting this year. Most practitioners will need a scanner for Oregon eCourt. Put it to work as a file retention tool.
Rationale: Scanning is too time consuming
If your paper files aren’t “scanner” friendly, digitizing them at closing time can be tedious and time-consuming.
Solution: Make your life easier and scan as you go
Scanning paper as you receive it means all file materials are electronic from the start and the work is done automatically over the life of the file. In fact, if you “scan as you go,” there is no reason not to simply be paperless.
After scanning, paper can be:
- Given to the client
- Kept for a designated amount of time in a general chron file
- Kept for a designated amount of time in simplified client file (e.g., dropped into an expanding file folder)
Exceptions may apply to certain types of originals. See the PLF File Retention Guidelines, available on the PLF website.
Rationale: The court has all my pleadings
This is a specific example of the argument that if someone else has a copy of the documents stored in my file, I don’t need to retain my set.
Solution: Keep it real
No one else possesses your exact client file, as you gathered it, for the purpose you gathered it.
When you decide that it isn’t necessary to keep copies of the documents you filed in court, the medical records used to prove your client’s damages, or some other part of your file on the grounds that “someone else has a copy,” you are taking a huge risk.
Many a lawyer has regretted the decision not to keep records because “they were available elsewhere.” For example, the lawyer who said he withdrew from a case long before a judgment was entered against his former client. The lawyer claimed he withdrew, but had no documentation in his file. The court’s Register of Actions showed receipt of a letter from the lawyer seeking to withdraw, but when a PDF of the court file was obtained, there was no letter. Maybe the letter never made it into the paper file. Or perhaps it was missed when the file was scanned.
Regardless, the moral of the story is pretty apparent: anyone (including a court clerk) can misplace, misfile, or lose a document. Never rely on another person or entity to keep your records. PLF claim files are replete with similar examples.
In the event of a legal malpractice claim, it may be crucial to prove what you did nor did not have in your file. And while it may be possible to obtain duplicate records, doing so does not establish they were previously in your possession.
Additionally, defending the practice of discarding part of your file can be quite uncomfortable at deposition or in front of a jury. Jurors hold lawyers to a high standard and often naturally have sympathy for the plaintiff bringing a claim. If your testimony shows that you shredded part of your file, jurors may draw the wrong conclusion about your motives. Play it safe and keep your complete file.
All Rights Reserved  Beverly Michaelis