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.

IF YOU ARE A PARTNER

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.

IF YOU ARE NOT A PARTNER

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.

ARE ISSUES LIKELY TO ARISE?

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

PUT CLIENTS ABOVE ALL ELSE

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.

GIVE NOTICE TO YOUR FIRM BEFORE YOU CONTACT CLIENTS

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).

RESOURCES

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.

PromptAppointment

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.

Learning the Ropes 2013

Are you new to private practice? Then I have just the ticket for you!

Attend our three day conference – Learning the Ropes: A Practical Skills & Ethics Workshop – for a mere $65.  Attendance at the full program satisfies the MCLE requirements for new admittees’ first reporting period.

Choose from these concurrent sessions:

  • Domestic Relations or Criminal Law
  • Tort Litigation or Estate Planning
  • Civil Motion Practice or Bankruptcy
  • Creating a Firm or Joining a Firm

Can’t decide?  All tracks are recorded for later viewing at no charge.

Plenary sessions include:

  • How to Develop a Successful Practice and Avoid Legal Malpractice
  • Client Communication and Other Practice Management Survival Tips
  • Alternative Dispute Resolution
  • The Ethics of Practice Management
  • Recognizing Child Abuse and Fulfilling Your Duty to Report
  • Negotiation Tips, Tricks, Traps, and Tools
  • Courtroom Do’s and Don’ts
  • Employment Law and Conscientious Communication
  • Bridging the Cultural Gap

Day 1 includes a “Meet the Judges” luncheon.  Day 2 features a networking luncheon with bar leaders and respected practitioners in the fields of Appeals, Criminal Law, Employment Law, Intellectual Property, Business Litigation, Debtor/Creditor Law, Estate Planning, Litigation, Business Transactions, Elder Law, Family Law, and Real Estate.

All meals, including the luncheons, are included in your $65 workshop fee.  The program is at the Oregon Convention Center November 6-8, 2013.  Register here or visit the PLF Web site > Upcoming Seminars (under the heading Loss Prevention – CLE).  Sign up early.  Space is limited!

Copyright 2013 Beverly Michaelis

Demandforce – Appointment Reminder Solution for Lawyers?

My first experience with Intuit’s Demandforce came in the form of a text message from my vet’s office. I received a reminder about an appointment and was prompted to confirm. I remember thinking: this is pretty neat! Veterinary staff later confirmed that clients universally appreciated the appointment reminders generated by this service. (Some did not care for the social campaign piece and opted out.)

This made me wonder: should lawyers use an automated appointment reminder service like Demandforce? Professional services are certainly targeted on the Demandforce site… but what about confidentiality?

  • Demandforce retains log files
  • They may disclose information in response to a subpoena or legal request:
    Demandforce may disclose, access, or report personal information when we believe, in good faith, we’re required to do so by law or to protect our legal rights. We may also do this in connection with an investigation into a suspected violation involving a Terms of Service, fraud, intellectual property infringement, or other activity that may be illegal or expose us to legal liability. For example, we may be required to disclose personal information to cooperate with regulators or law enforcement authorities or to comply with a court order, subpoena, search warrant, or law enforcement request.
  • Encryption and site intrusion detection software is used to protect sensitive information
  • Consumers (your clients) are given an opt-out with each communication
  • Suggestions, ideas, enhancement requests, feedback, recommendations (collectively, Feedback) or other information provided by the Customer or any other party relating to the Service belong to Demandforce.
  • The customer (lawyer using the service) retains all right, title and interest to any and all patient or customer data including consumer review data captured by the … system … subject to Demandforce’s right to use such Customer Data to provide the Service to Customer. (Paragraph 3, Terms & Conditions)
  • Demandforce does not own any Customer Data, information or material that you submit to the Service in the course of using the Service. (Paragraph 5, Terms & Conditions)
  • For medical professionals – Demandforce is HIPAA compliant
  • Personal customer information (information belonging to the lawyers using the service) may be sold by Demandforce. Customers will be asked if they would “like to stop receiving promotional information following any change of control.”

Evaluating Third Party/Cloud-Based Services

Can a lawyer in Oregon use a cloud-based service? Yes – provided the lawyer follows the parameters of Opinion 188. How do you know if a cloud service is appropriate for your confidential client information?

  1. Review the Terms of Service, Terms of Use, or Terms & Conditions
  2. Review the Privacy Policy
  3. Review the Security Policy
  4. Fully investigate the vendor following the guidelines suggested by the ABA Legal Technology Resource Center
  5. Ask questions: Who is my vendor? How will my data be stored and where? Who can access my data? Who owns the data I upload? What happens if the cloud provider goes out of business? For a great discussion, see Evaluating Cloud-Computing Providers.
  6. Get client permission. Add a provision to your fee agreement/engagement letter allowing you to send cloud-generated appointment reminders. This is also an opportunity to address communication by unencrypted e-mail, storing client data in the cloud, or use of a client portal.

All Rights Reserved (2013) Beverly Michaelis

Balancing the Roles of Lawyer and Caregiver

If you are balancing a law practice while caring for an adult family member, you are not alone:

  • 44.4 million Americans age 18 or older are providing unpaid care to an adult.
  • The average length of caregiving is 4.3 years, wcalthough some people spend many more years in a caregiving role.
  • Almost 60% of all caregivers either work or have worked while providing care.  Sixty-two percent have had to make adjustments to their work life.
  • Many caregivers fulfill multiple roles.  Most caregivers are married or living with a partner (62%), and most have worked and juggled caregiving at the same time (74%).
  • The most frequently reported unmet needs of caregivers are finding time for themselves (35%), managing emotional and physical stress (29%), and balancing work and family responsibilities (29%).

These sobering statistics are featured in the March issue of In Sight, published by the Oregon Attorney Assistance Program (OAAP).

How do Caregivers Cope? 

With information, help, and resources.  All three are addressed in the current issue of In Sight.  Articles include:

One of the best resources is the Oregon Attorney Assistance Program.  The OAAP provides free and confidential support to lawyers who are balancing work and caregiving.

Making Adjustments to Your Law Practice

Many years ago I met a lawyer who contacted the PLF for help after experiencing a series of legal malpractice claims.  The lawyer had missed deadlines, failed to appear in court, and made mistakes in document preparation.  During our meeting I learned he was caring for his elderly parents.  Nearly every day he was called out of the office to retrieve a prescription, take care of an incident at his parent’s home, or drive his mother or father to the doctor.  Keeping a regular work schedule in the midst of this chaos seemed impossible.  Winding down the practice was not an option – his family needed the income.  The solution?  He closed his office on Fridays.  New and existing clients were informed of the office hours.  The lawyer also explained his strategy to health providers, obtaining their cooperation in scheduling regular medical visits on Fridays.  He was fortunate to practice in a smaller legal community where colleagues, opposing counsel, and the court were understanding.  The final secret to his success was a full-time legal secretary.

Not all lawyers are as fortunate as the one described above.  You may practice in a large, sprawling community where few lawyers know one another and bench-bar relations are nonexistent.  Hiring a full-time legal secretary?  Sounds great, if you have the money.  No matter what the circumstances may be, there are always options.  If you are a lawyer in Oregon struggling with caregiving and lawyering, contact the OAAP and the PLF.  The OAAP can provide emotional support and personal assistance.  A practice management advisor can help you strategize about how to adjust the scope of your practice.  Both services are free and confidential.

All Rights Reserved 2013 Beverly Michaelis

Are Private Lawyers Required to Bear the Cost of Communication Access?

Accommodating actual or potential clients with hearing impairments is a misunderstood requirement of the Americans with Disabilities Act.

The National Association for the Deaf has this information to share:

Duties of Public Defenders and Other Government Lawyers

Public attorneys, such as public defenders (lawyers assigned to represent people charged with a crime) or other state or local government lawyers, may be unfamiliar with their obligations under the ADA. Public attorneys must ensure that communication with deaf or hard of hearing clients and members of the public are as effective as communications with others. A public attorney must provide appropriate accommodations when necessary to provide an equal opportunity to participate in and enjoy the benefits of the lawyer’s services. A public attorney must give primary consideration to the accommodation requested by the individual who is deaf or hard of hearing.

Duties of Private Lawyers

Private attorneys may be unfamiliar with their obligations under the ADA. Some private attorneys may be unwilling to provide and pay for the necessary communication access services. As a result, many deaf and hard of hearing people are unable to retain private attorneys for important legal matters, such as criminal proceedings, family law issues, and employment law matters. The ADA recognizes that private lawyers do not have to provide a specific type of auxiliary aid or service if they can demonstrate that doing so would be an undue burden (a significant difficulty or expense). To demonstrate an undue burden, lawyers must show that the cost to provide accommodations would significantly impact their practice and financial resources, which may be difficult for most law offices. When an undue burden can be shown, the lawyer must provide alternative communication access services that would, to the maximum extent possible, ensure effective communication.

Required Accommodations

The Americans with Disabilities Act (ADA) requires attorneys to provide equal access to their services by providing accommodations necessary to ensure effective communication with individuals who are deaf or hard of hearing. These accommodations include qualified interpreters, CART, and assistive listening devices.

Help with the Cost of Accommodation

The NAD advocates for improved access to legal services through the establishment of a communications access fund (CAF) in each state. The CAF would cover the cost of communication access services to ensure effective communication with private attorneys. The revenue source for each state’s CAF could be generated by assessing a small annual fee to be paid by each practicing attorney licensed in that state. Several states and local jurisdictions have established CAFs for legal services.

Liability Under the ADA

For a discussion of liability exposure for failing to comply with the ADA, see Providing for the Deaf, Hard of Hearing under the ADA. This post also contains useful practical tips for meeting your communication obligation.

Help for Oregon Lawyers

Oregon’s Deaf and Hard of Hearing Services provides resources and can answer questions about interpreter services in Oregon or other deaf and hard of hearing related information.

All Rights Reserved – Beverly Michaelis – 2013

The Art of Effective Communication

imagesAre you a good communicator?  Or do you find yourself struggling to get your point across?  If you fall in the latter category, it could be that you are focused on your message to the exclusion of other important attributes of effective communication: listening skills, tone of voice, body language, and empathy.

In Effective Communication, Shari Gregory relates the following tips:

LISTENING

Good communication starts with the ability to listen. Effective listening means being present, keeping an open mind, and being respectful of others. The following suggestions are just a few ways to improve your listening skills:

  • Focus on what is being said.
  • Look directly at the person who is speaking.
  • Let the speaker finish before you speak.
  • Listen for the feelings behind the words and watch for nonverbal cues.
  • Give the speaker your full attention – focus on what the speaker is saying, not on how you are going to respond.
  • Be open to the speaker’s message.
  • Ask questions to clarify what you do not understand.
  • If you are uncertain about whether you correctly understood the speaker, explain what you understood to the speaker (paraphrase) and ask the speaker if you have understood correctly.

TONE OF VOICE AND BODY LANGUAGE

More than half of all human communication is nonverbal. When talking with another person, be aware of your tone of voice, eye contact, and body language. If you feel harried or anxious when you speak, you may sound short or abrupt. If you are not feeling patient or well-balanced, your tone of voice might sound condescending or angry. Your gestures, such as hands and arms moving frantically, may distract the listener from your intended message.

For listeners, a speaker’s facial expression is often the key determinant of the meaning they give to a speaker’s message. When you speak, your face communicates your attitudes, feelings, and emotions more clearly than any other part of your body. Eyes squinting or glaring, eyebrows furrowed, face flushed red, or a frowning mouth may communicate to the listener that he or she is at fault for your uncomfortable state. The listener may become insecure or defensive, making it likely that whatever you are trying to say is lost.

Listeners are more likely to judge your sincerity and credibility based on your nonverbal behavior and whether it is consistent with your words than on your words alone. If you are feeling anxious or upset, take a deep breath before you speak. Question yourself about your mood. Take an internal look at how you are feeling and why. This will give you a “mental time out” – enough time to reframe what you want to say and how you are going to say it, taking into consideration to whom you are speaking. Organize your thoughts so you can explain why you are upset.

EMPATHY

Empathy is the ability to connect with another person and to share in another person’s emotions or feelings. As lawyers we pride ourselves as wordsmiths, but at times, our emotion, enthusiasm, and passion may cause us to forget to consider our audience. Effective communicators recognize that differences in cultures, personality, status, education, or perception may become stumbling blocks to communication. Valuing differences and keeping them in mind can help people communicate more effectively.

PARTING THOUGHTS

Shari’s tips guide us on how to approach face-to-face communications with clients.  It is equally critical that we put proper effort into our written communications.  Too often lawyers (and clients) fire off an e-mail without stopping to consider: is this the best way to communicate Remember, e-mail is meant for:

  • Quick answers to straightforward, yes and no questions
  • Making or confirming appointments, court dates, or other calendar commitments
  • Transmitting documents
  • Distributing information quickly to many people
  • Short, simple communication!

Pick up the phone when:

  • You are unclear about the question being asked
  • The question is complicated and requires a detailed answer
  • The subject matter is sensitive and your words could be misinterpreted

You can always send a confirming e-mail or letter after the fact. 

For additional tips on effective communication, I invite you to listen to this podcast of my conversation with Vicki Voisin of The Paralegal Mentor.

All Rights Reserved (2013) Beverly Michaelis