Coping with Mistakes

Mistakes happen.  The practice of law is complex, clients don’t always follow through as directed, and sometimes we commit errors.

The emotion of being caught up in a legal malpractice claim can be overwhelming:

A significant measure of a person is not whether he or she avoids trouble, but how he or she meets it when they find each other…. I have developed immense respect for many of our covered parties, not because of their perfection as lawyers (they weren’t perfect), but because of how they coped with the claim.
Bruce Schafer, PLF Director of Claims – Parting Thoughts: Lawyers are like other people.

Help is here if you are feeling stressed or overwhelmed

Take this advice from the Professional Liability Fund:

We recognize that having a legal malpractice claim filed against you is often very upsetting. Lawyers react in many different ways, including anger, loss of confidence, anxiety, avoidance, and inability to focus.  If you would like assistance coping with the stress or other challenges associated with a legal malpractice claim, the Oregon Attorney Assistance Program offers free and confidential support and assistance. Information you provide to OAAP Attorney Counselors is not shared with the PLF Claims staff, your defense counsel, or any other person. In fact, no information is disclosed to any person, agency, or organization outside the OAAP without your consent. For free and completely confidential assistance call 503.226.1057 or 1.800.321.6227 (OAAP).  NOTE:  We ask that you do not discuss the facts or merits of the case with anyone other than the PLF, defense counsel, or others with whom you maintain a legally confidential relationship.

Putting claims into context

One of the most important roles we fulfill at the PLF or OAAP is helping you put a claim in context:

  • You are not alone.  The PLF receives approximately one claim for every nine lawyers it covers.  More than 80% of lawyers in practice 20 years or more have had a claim.
  • Having a strong reaction to an allegation of malpractice is very common.
  • There is never a downside to contacting the PLF or OAAP.  Our services are confidential and we are here to help.
  • The PLF has two claims attorneys on call every day to talk to Oregon lawyers. You should contact the PLF if you are served with a summons and/or complaint; you are concerned that you may have made a mistake; a client indicates that you have made a mistake; someone threatens you with a claim or makes a demand for damages against you; you receive a subpoena, or someone requests information, documentation, and/or testimony about your representation of a client.  Call the PLF even if you are concerned that the claim may not be covered.
  • At least one Attorney Counselor is on call daily at the OAAP office.  The OAAP is available to assist with any issue that affects the ability of a lawyer to function effectively.
  • The PLF has four practice management advisors on staff who are available to help you take action and constructively move forward with office system improvements.

All Rights Reserved [2015] Beverly Michaelis


How to Say No to Clients


Did you answer “yes” to one or more of these questions?  You are in good company.

Lawyers often feel pressured to practice “door law.”  The source of the pressure may be economic:  I don’t really have a choice.  I need the money.  It can also be emotional: Family, friends, or former clients are depending on me.

If you find yourself in this predicament frequently, here is some sage advice that first appeared in In Sight.  These tips apply no matter who is doing the asking: clients, friends, family, neighbors, teachers, etc.:

  • Be respectful.  Listen to the asker and don’t interrupt. Respect the request, then respect your right to decline the request.
  • Keep it simple.  You have the right to say “no.”  Elaborate justifications aren’t necessary [and may lead to backsliding, since many of us say “yes” to avoid feeling guilty].
  • Assign responsibility elsewhere:  “That sounds very nice; unfortunately, my
    calendar is booked solid.” Now it’s your calendar’s fault. Stand firm. Avoid engaging in discussion or negotiation.
  • Refer to others who might fill the opening well.
  • Say yes when there is a good reason to do so, it will benefit you, or the cause is one you believe in.  [Life is too short to take on a case or client you find repugnant.]

I encourage you to read the full article here.

Postscript – What would I add to the above?

It’s time to keep it 100, get real, and dish some tough love:

  1. You are not the only lawyer who can help your clients.  If money is an issue, there are others who participate in the OSB modest means program, offer sliding fee services, or take pro bono referrals.  If you continually give your time away to nonpaying clients, your practice will decline and you may need to close your doors.  If you close your practice, you aren’t available to help anyone.
  2. If the case can’t be won, are you doing a service or a disservice by taking it? Once a lawyer commits to a case, many clients assume the case CAN BE WON, no matter how you qualify your representation.  Not all clients have a legal remedy, for a variety of reasons. This can be a bitter pill to swallow, but the truth is better than false hope.  You can always suggest [and should suggest] a second opinion.
  3. Even when the client has the money and the case is decent, you are not always the right match.  Don’t let someone push you out of your comfort zone. Law is complex.  Staying on top of your desired practice areas is hard enough. Straying into unfamiliar areas is stressful, time consuming, expensive [because of the learning curve], and more likely to result in a claim or bar complaint.
  4. You are a lawyer, not a doctor.  Keeping clients who won’t follow your advice, don’t cooperate, and look to place blame anywhere but with themselves, is a pure misery.  This is not a situation you can cure, except by firing the client.

All Rights Reserved [2015] Beverly Michaelis


Fresh Strategies and Ideas for Marketing Your Law Firm

Are you looking for fresh strategies and ideas for branding and marketing your practice?  One excellent resource is marketing advisor and social media consultant Nancy Myrland.

I’ve followed Nancy on social media for several years.  I learned quickly that she is a wealth of knowledge, even when limited to 140 characters.

Want to know how to brand your law firm?  Nancy has ideas.  Looking for new strategies in content marketing, here you are.  Is video is the way to go?  Nancy has advice on that topic too.  No surprise, but she also writes about specific social media platforms: Google+, LinkedIn, Twitter, and social media generally.

How can you get access to all this great stuff?  Easy!  Just subscribe to Nancy’s blog or podcast.

Another favorite of mine is Samatha Collier at Social Media for Law Firms. Samantha also has the gift of imparting great advice in 140 characters or less.

Follow Samantha on social media, visit her site, or subscribe to her blog if you want to get started in social media, improve social media engagement, or learn content marketing from one of the best.  Need motivation?  Here are a few topics to pique your interest:

While We’re on the Topic of Marketing

Don’t forget the PLF offers a number of marketing resources on its website. Select Practice Management > Forms > Marketing to access the following:

  • Marketing and Business Development Worksheets [assessing your competition, choosing a niche, crafting an elevator speech, marketing budget, target market contacts]
  • Checklist for Creating a Marketing Plan
  • Sample Marketing Plans
  • Business Development Goal-Setting Checklist
  • White Paper: Marketing and Business Development: Crucial Skills

All Rights Reserved [2015] Beverly Michaelis

Avoiding a #PrimeDayFail With Your Clients

Online retailer Amazon touted last week’s Prime Day as “Black Friday” in July.  Judging by the sales, it was a success.  At the same time, Prime Day was also a huge let-down, leaving many customers angry and frustrated.

The snark was running at full steam on Twitter and other social media sites, generating the trending hashtag: #PrimeDayFail.

What Lesson Can Lawyers Learn From #PrimeDayFail?

Amazon Prime customers were ticked because the sale didn’t match the hype.  Common complaints included:

The end result?  Amazon sold enough Tupperware to turn a profit but also damaged its reputation.

The lesson for lawyers can be summed up pretty simply: control expectations, keep your word – don’t offer a deal you can’t deliver, and remember that appearances matter.  Raising a price on Prime Day doesn’t make Amazon evil, but it doesn’t look good either.  Here are your marching orders:

Manage Client Expectations

  • Assess cases realistically and present them to clients that way.
  • Explain clearly, and confirm in writing, exactly what your legal services will consist of and exactly how the fee will be determined.
  • Confirm all advice in writing, particularly if the client chooses not to follow your advice.  Explain alternatives and their ramifications, and then let your client decide.

Don’t Promise What You Can’t Deliver

  • Complete work as promised, or let the client know why if it cannot be done.
  • Keep the client informed of the progress of his or her case by sending copies of pleadings, correspondence, etc., as well as occasional status reports.

Perception is King – Strive to be Responsive, Timely, Accurate, and Empathetic

  • Keep client appointments promptly.
  • Establish a standard time for returning client calls and responding to email.  Communicate your practices to clients and keep your promise.  The PLF offers administrative brochures and other client relation materials that describe these kinds of policies so clients know what to expect.  Visit our site, select Practice Management, then Forms, and choose the category Client Relations.  If you are unavailable for an extended period, let clients know.
  • Take measures to produce professional work product.  Clients are forgiving of the occasional mistake, but frequent billing errors, typos, and other clerical snafus can cause the client to question your fees, your work, and your integrity.
  • Treat clients with empathy and practice good listening skills.  Often the most important client need you can meet is the need to be heard and understood.  Clients who feel “well taken care of” rarely file a bar complaint or legal malpractice claim.

[All Rights Reserved 2015 Beverly Michaelis]

Are You Losing Clients?

If your client retention rate is less than 90-95%, something is terribly wrong.

You might react by changing your fee agreement – aiming to “punish” the client who terminates your services after a substantial amount of work is done but prior to a recovery.

Unfortunately, this doesn’t solve the underlying problem.  If you fail to keep one in ten (or more than one in ten clients), it is time for some serious soul searching.

Hybrid Fee Agreements Don’t Solve Client Retention Problems

Don’t get me wrong, hybrid fee agreements have their place.  They are very effective in helping lawyers achieve cash flow during long months of toiling away on a contingent fee case.  They are also a creative way to address client push-back against the traditional hourly fee approach.

They are not effective in curing client retention woes.

What Does it Take to Keep Clients?

Improving client retention isn’t rocket science.  In fact, you can do it by following a simple acronym:  TREAT.

T – be Timely

R – Respond to client requests and concerns

E – show Empathy

A – demonstrate Assurance that client matters are being handled competently

T – deliver on the Tangibles.  Don’t send emails, invoices, or correspondence riddled with errors.

Read more about TREATing clients well here.

To simplify: show the same care and concern to your clients that you wish someone would show to you if you were in their shoes.

Remember that Poor Client Retention Can Lead to Bar Complaints and Malpractice Claims

If you need further motivation to kick your client retention up a notch, understand that how you treat clients is connected to everything in your law practice:

  • Client satisfaction and retention
  • Getting paid on time
  • Minimizing fee disputes
  • Future referrals
  • Avoiding bar complaints and legal malpractice claims

Go beyond TREATing clients well.  Do a thorough client relations check-up. This includes understanding the scope of the attorney-client relationship (when you can act and when you need the client’s informed consent) as well as managing client expectations.

Losing Clients on a Regular Basis Just Shouldn’t Happen

I am not currently in private practice, but in regard to client retention, nothing has really changed.

Back in the day, exactly one client terminated our firm.  This particular client read about a case in the news that she judged to be the same as hers.  She then fired us to free herself up to hire the lawyer who handled the case she read about.

In truth, we dodged a bullet when the client made this decision.  She would never have accepted (from us) that her case didn’t have the same value as the one she read about.

I can also share that in all the years I worked for a private law firm, we were on the other side of a client termination exactly once.

My point here is that my firm – and all firms we knew – simply didn’t lose clients.  And this is still true today for the majority of lawyers.  How do I know?

A large part of my job entails helping lawyers or families of lawyers close law practices.   I have been exposed to lawyers who were at the top of their game and lawyers who were not.  I also have a substantial amount of ongoing client contact due to these closures.

The truth is the lawyers need to do a lot wrong, and generally for some period of time, before clients jump ship.  Therefore, you don’t have to follow my client relations tips or suggestions for TREATing clients well 100% of the time.  No one is perfect.  But you should keep clients uppermost in your mind just about every waking moment that you are at work.

We All Know What to Do – Why Can’t We Do It?

None of this is really new.  So why is it so hard?  The number one reason: you are trying to juggle too many cases without the proper resources.  You are practicing beyond your expertise and not weeding out cases and clients; you are practicing within your scope, but your caseload is too high; you are unwilling to invest in staff, technology, or other solutions.

Making money isn’t easy.  As a result, many lawyers skimp.  They try to get by without hiring someone despite the fact they have more work than they can handle.  This trap is referred to as “penny wise and pound foolish.”  Next week I’ll write about how you can make money by spending money and hiring staff.

All Rights Reserved [2015] Beverly Michaelis



Family Leave for Solos and Small Firm Lawyers

How do solos and small firm lawyers plan for extended leave when a new member is about to join the family?  It can be hard enough to take a vacation!

Fortunately, there are some answers and good resources to draw upon.  (Jump to the end of this post.)  For now, let’s cover the basics.

Colleagues, Conflicts, and Staffing

The best coverage plan entails having a number of colleagues lined up who are willing to cover your cases.  Remember what your parents said?  Safety in numbers!  If one person can’t cover in an emergency, someone else can.  A team approach works best.

By necessity, any lawyers who might work on client matters must be screened for conflicts.  Clients need to be notified anyway about your upcoming leave.  Use this opportunity to get permission to share information for conflict and representation purposes.  (More on this below.)

If you have staff, great!  They are a huge help any time you are away from the office, more so during extended absences.  They will be a lifeline for everyday communication, including screening mail, email, and calls.  If you don’t have staff, consider getting a temp.  Having someone who can cover day-to-day operations brings peace of mind and ensures that nothing falls through the cracks.

How Do I Tell My Clients?

One option is to send a letter or email.  No surprise there.  But is it the best approach?

Most lawyers anticipating family leave have a number of colleagues in mind to assist in covering their cases.  This alone can make writing a letter or email complicated and confusing:  “I’m going to be out of the office, but you can choose from Lawyer A, Lawyer B, or Lawyer C.”  Huh?

Consider picking up the phone instead.  Call clients and tell them you are taking a medical leave and why.  (Of course, you can omit the “why” part – it is personal and technically no one’s business, but most lawyers taking family leave don’t mind sharing this news.)

Have a conversation with the client about what is happening.  Explain your plan, offer a name of a monitoring lawyer (or team of monitoring lawyers), then get consent to screen for potential conflicts and review the client’s case with the monitoring lawyer(s).  If everything is a “go,” make sure the client understands and agrees to temporary representation by the monitoring lawyer(s).  Don’t forget to discuss how the billing and payment piece will work.

If the client does not agree with your proposed arrangement, you may have to disengage and withdraw from the case.  The client will need to find a new lawyer of their choosing.

Confirming Arrangements in Writing

Assuming you call clients to review your plan, sending a confirming email becomes relatively easy:

“As we discussed, I will be out of the office on a medical leave of absence for ___________ (months/weeks).  During my leave, I propose that _______________ monitor your file.  You agree that I may share information with _____________ so (he/she) may screen for potential conflicts of interest. If no conflicts exist, you agree that I may disclose details of your case to ______________________ for purposes of monitoring your file and attending to any legal work that needs to be accomplished while I am out of the office.  If we discover a conflict that prohibits ___________________ from assisting you, I will contact you immediately.

You will receive a separate written confirmation from ___________________ (the monitoring lawyer) confirming the arrangements we have made.

(Describe next how the client will be billed.)

My assistant, _______________, will be available by phone and email should you have any questions while I am out of the office.  (Provide your assistant’s contact information.)

Rest assured I will stay informed regarding the status of your case.  I anticipate returning to the office on ___________.  If for any reason my return is delayed, I will inform you immediately.

(Optional:  Please reply to this email confirming your understanding and agreement to this arrangement.)

Fee Agreements and Paying the Monitoring Lawyer

If your existing fee agreement has a provision informing the client that you have made arrangements for someone to cover your practice in the event of illness or disability you have laid the necessary foundation for using a monitoring lawyer.  The PLF offers a number of fee agreements and engagement letters that incorporate “assisting attorney” language.  For samples, visit the PLF website.  Select Practice Management > Forms, then Engagement Letters.

If your existing fee agreement has a contract lawyering provision – meaning the client has consented to use of a contract lawyer at a specified rate – it is easy to have the monitoring lawyer step into the contract role.  You may bill the client for contract lawyering services according to your existing fee agreement.

Alternatively, clients can sign separate fee agreements with the monitoring lawyer.

More Answers and Good Resources

There are many excellent articles and resources for lawyers planning family leave:

[All Rights Reserved – 2015 – Beverly Michaelis]

Ending the Attorney-Client Relationship

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]



Leaving Your Firm

Parting isn’t always such sweet sorrow.  In fact, it can be downright contentious.

If you are contemplating leaving your firm, do your research. Meeting your ethical obligations fulfills only part of your responsibilities.


Conduct your partnership withdrawal in a manner that honors the contractual and fiduciary responsibilities owed to your fellow partners.  Contractual duties are controlled by your written partnership agreement.  Fiduciary duties are described in case law and codified by statute in Oregon’s Revised Partnership Act.


Review your employment contract, employment letter, office policies, office procedures, or any other applicable terms that may control the process for terminating your relationship with your current firm or your obligations upon departure.


Consult outside counsel experienced in the areas of lawyer mobility, partnerships, fiduciary duties, lawyer separation, and law firm dissolution.


If you are making a lateral move to another firm or setting up your own practice, remember that the client’s freedom of choice in selection of counsel is paramount.  Always put the interests of your clients first.  Keep the transition as amicable, professional, and stress-free as possible.  Contentious withdrawals alienate clients and damage relationships.


Inform the firm of your decision to leave before contacting any clients.  Failing to give adequate and timely notice to your firm or partners before you contact clients is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.  It may also constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Oregon RPC 8.4(a)(3).


The Professional Liability Fund has extensive resources for Oregon lawyers who are departing a firm, withdrawing from a partnership, or dissolving a firm.  Visit our Web site for more information.

All rights reserved [2014] Beverly Michaelis.



Treating Clients Well

In today’s legal economy, developing business and marketing to prospective clients is the centerpiece of nearly every lawyer’s existence. Whether you are a sole practitioner, an associate or a seasoned partner, you will most likely need or be expected to cultivate and grow your own clientele.

Some firms lean heavily on web design and search engine optimization to attract prospects. Others rely on referrals. Both approaches are effective, but incomplete. The next step is to deliver top-notch client service, starting with understanding and meeting client needs. Continue reading

The Hidden Cost of No Show Appointments

Guest post by Shaun Clark, Prompt Appointment

The average billing rate of a lawyer in Oregon is $242 per hour. So when a client fails to keep an appointment, you stand to lose a substantial amount in consultation fees. Add in the time it takes to follow-up with the client and re­schedule, and the real cost of a no-show becomes more apparent.

Even if you offer free initial consultations your practice is still at risk if you have a high no-show rate. Clients who fail to keep initial appointments rarely, if ever, book a subsequent appointment for which the lawyer can actually bill.

This Isn’t Only Your Dentist’s Problem

No show appointments can be a huge drain on your practice’s bottom line. Clients are difficult to get and the ones you have are important to keep, that’s why utilizing automated appointment reminders in your practice is an inexpensive way to solve this profit-draining problem.

Automated reminders can be used to: 

  • Stop no show appointments
  • Drive up collections rates with bill reminders
  • Compliment marketing efforts by creating positive online reviews for your firm through the use of follow-up e-­mail surveys

How Does an Automated Reminder System Work?

Automated reminder systems send text, e­-mail, or voice messages to clients prior to their appointments. Reminders can be initiated through your existing legal practice management software (i.e. Clio, Rocket Matter, MyCase) or through the appointment reminder Web interface.

When the text, e-mail, or voice message arrives, the client is asked to confirm his or her attendance at the appointment. If the client cannot keep the appointment, he or she can initiate a request to reschedule. When the client responds to the appointment reminder, your office will be notified immediately. If the client asks to reschedule, you or your staff can quickly reach out to set a new appointment date and time.

Are Automated Reminder Systems Costly?

Automated reminder systems cost as little as $30/month. At an average billable rate of $242 per hour it doesn’t take long for an automated system to transition from paying for itself to actually making a law practice money. (Money that was simply being lost month in and month out in missed consultation fees.) In addition, providers of these services usually offer free trials. This makes it easy for a solo or small firm to take a test drive before committing firm dollars to new software that doesn’t work or falls short of its promises.

How Can an Automated Reminder System Help me Collect Fees?

Automated reminders don’t have to stop at appointments. You can use the reminder system to prompt clients about overdue bills. With an automated system client invoicing can transform from a confrontational endeavor (tracking down late payments; sending clients to collections) to improved collection rates and lower receivables. Text or e-­mail reminders can alert clients their invoice is ready and provide a link for online payment. Any system that assists in prompt delivery of client bills and provides clients with an easy way to pay and will reduce the number of days your unpaid accounts remain outstanding.

The Benefits of Integration with Practice Management Software

The best appointment reminder systems will integrate seamlessly with your legal practice management software. To you, the user, this means the appointment reminder system will appear as another tool in your existing software (i.e. Clio, Rocket Matter, or MyCase) without the hassle of having to learn a new program.


If you or your firm is suffering from client no shows, we would be happy to arrange a free 30­ day free trial of PromptAppointment. We send automated appointment reminders and can link to your existing practice management and accounting software. Try PromptAppointment today and make no shows a thing of the past.


A note from Oregon Law Practice Management:  I have reviewed automated appointment reminders in the past, but was happy to offer Shaun the opportunity to blog about PromptAppointment, a home-grown solution based right here in Oregon.  Unlike Demandforce, the product I blogged about previously, PromptAppointment promises to integrate with your existing practice management software – a real plus. With that said, this is not a product endorsement. If you are interested in appointment reminder solutions, conduct appropriate research.