Pro Se Adversaries – Tips for New Lawyers

Dealing with a pro se party raises a number of reasonable concerns:

  • The pro se could misconstrue what I say
  • The pro se may regard me as his or her lawyer
  • The pro se could sue me for legal malpractice

Communicate in Writing Whenever Possible

When you communicate verbally, a pro se can misremember your words, misconstrue your meaning, or even deny the discussion occurred.

When you communicate in writing your words are documented.  It becomes impossible to “misremember” or deny what you said.  Yes, written communication can still be misconstrued, but there is less likelihood of this happening.

Use a 3-Way Disclaimer

  • “I don’t represent you.”
  • “I can’t give you legal advice.”
  • “If you have questions, hire a lawyer.”

Every pro se communication should include this type of disclaimer.   If the pro se party later argues you had a lawyer-client relationship or attempts to assert a legal malpractice claim on the grounds that you failed to protect her interests, you will be in a better position to defend yourself.

Be a Broken Record

The 3-way disclaimer must be used every time you communicate with a pro se.  Does it become repetitive?  Perhaps, but that doesn’t matter.  Some pro se adversaries “get it” from the beginning; some “get it and forget it;” some never “get it.”  This doesn’t mean the pro se is purposely trying to make your life more difficult.  But it does underscore the value of redundancy.

Practice Tips Beyond Pro Se Communication

For more tips on how to work with pro se adversaries, peruse the following:

[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]

Evaluating Online Lawyer Referral Services

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:

Fees

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.

Confidentiality

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.

Advertising

…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.

Exclusivity

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.

Cancellation

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.

Better Marketing

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.

Ask

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 [2015] Beverly Michaelis

Avoiding eCourt – Waivers and eFiling “Lawyer Buddies”

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]

Crowdfunding Your Law Practice

crowdCrowdfunding is the practice of funding a project or venture by raising monetary contributions from a large number of people, typically via the Internet.

The crowdfunding model is fueled by three types of actors: the project initiator who proposes the idea and/or project to be funded; individuals or groups who support the idea; and a moderating organization (the “platform”) that brings the parties together to launch the idea.

In 2013, the crowdfunding industry grew to be over $5.1 billion worldwide.
Source: Wikipedia.

Crowdfunding for Lawyers

Potentially, lawyers could use crowdfunding at any time – to jumpstart a law practice, expand a law practice, or bridge the gap during a downturn in business.

As you might expect, crowdfunding is most successful when used to promote a cause or new product idea rather than a service.  But it could work for lawyers if donors find the practice area and marketing pitch appealing.

The Ethics of it All

Before we get too excited about this idea, we need to do a gut check.  Simply put: is crowdfunding ethical?

A quick Internet search produces a list of posts and articles on the subject.  Here are a few:

The first result is by far the most interesting for Oregon lawyers.  In Crowdfunding: The Future Of Public-Interest Funding? author Sam Wright reports a conversation with Oregon lawyer Kellie Ann Furr who is crowdfunding a “private-public interest environmental law firm” on Indiegogo.  Furr is halfway to her fundraising goal of $7,500.  Take the time to look at her campaign and you’ll understand the appeal and her success.

But back to the ethics of it all…

In his Above the Law post about Furr, Wright tells us:

First, she sought and received an informal opinion from the Oregon State Bar on “the ethics of donation-based crowdfunding” to make sure she was on sound ethical footing. She was also careful to select “perks” for donors that would not affect her “professional independence” — in her case, the perks mostly involve volunteer time or pro bono assistance to environmental organizations. And she includes appropriate disclaimers on her campaign page.

So does this mean Oregon lawyers are off and running – free to set up crowdfunding campaigns without a second thought?  Not quite….

Crowdfunding is a “Communication Concerning a Lawyer’s Services” for Purposes of Oregon RPC 7.1

By necessity, crowdfunding involves representations about your potential or ongoing law practice. Therefore, Oregon RPC 7.1 – Communication Concerning a Lawyer’s Services – would apply to the content contained in your crowdfunding appeal:

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

Simply put: lawyers are responsible for ensuring that representations made about their practice are accurate.  For an excellent discussion of this topic, see OSB Formal Opinion No. 2007-180 Internet Advertising: Payment of Referral Fees and the following articles:

“Dishonesty, Fraud, Deceit, or Misrepresentation” – the Companion of RPC 7.1

A violation of Oregon RPC 7.1 (communication that is false or misleading) could also implicate Oregon RPC 8.4:

“It is professional misconduct for a lawyer to … “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice law.”

But lawyers can run afoul of RPC 8.4 in other ways.  As discussed below, crowdfunding campaigns often promise “rewards” or “perks” for donors.  Assuming that offering something in return for a donation is ethical, failing to deliver the “reward” or “perk” if all conditions are met would likely be construed as a violation of 8.4.

The Granddaddy of them all: Is Crowdfunding Fee Sharing with a Nonlawyer?

Lawyers and law firms are prohibited from sharing legal fees under Oregon RPC 5.4, except in limited circumstances.  This begs the question: if a donor gives a lawyer money to fund his or her law practice, does this constitute impermissible fee sharing?

Maybe yes.  Maybe no.  Where is the “fee” and how is it “shared?”  Compare the following scenarios:

  1. Lawyer and nonlawyer wish to form an LLC offering business advice.  They intend to charge potential clients a flat fee of $1,000 for their services and split the fee 50/50.  Lawyer will provide the legal advice; nonlawyer will coach clients on business strategies, financing, marketing, and the like.
    While this arrangement raises a number of issues, the question here is: does the proposed fee split violate Oregon RPC 5.4?  The answer is a straightforward: yes!
  2. A donor gives money to a lawyer to start her law practice, no strings attached – the funds are a gift, not a loan; the donor is seeking nothing in return; the lawyer is providing nothing in exchange for the donation.  There is no “fee.”  There is no “sharing.”  The donor could be Mom, Dad, a friend, or a stranger responding to a crowdfunding appeal.  It is hard to understand how this could be a violation of RPC 5.4 – but as always, I encourage readers: take your questions to the experts – OSB General Counsel’s Office.

So crowdfunding looks like a “go,” right?  Not so fast … here’s the thing about crowdfunding.  Donations aren’t generally a “gift” with no strings attached:

The Crowdfunding Centre’s May 2014 report identified the existence of two primary types of crowdfunding:

Rewards crowdfunding: entrepreneurs pre-sell a product or service to launch a business concept without incurring debt or sacrificing equity/shares.
Equity crowdfunding: the backer receives shares of a company, usually in its early stages, in exchange for the money pledged. The company’s success is determined by how successfully it can demonstrate its viability.

Source: Wikipedia.

Permitting donors to take an equity interest in your law firm is clearly impermissible under RPC 5.4.  A rewards approach could quickly go awry if the lawyer violated RPC 7.1, 8.4, or other applicable rules.  Remember Kellie Ann Furr?  Her Indiegogo campaign offers four different “perks” or rewards for donors:  volunteer time, pro bono work, or a one-hour consultation.  She carefully limits the one-hour consultation to Oregon residents only and includes a disclaimer that donating to her campaign does not create an attorney-client relationship. Is this sufficient?  At the risk of repeating myself: take this question to the experts – OSB General Counsel’s Office.

Funding a Law Practice Is Only Part of the Picture: Student Loans, Litigation, and Securities Regulation

Crowdfunding raises issues in other areas as well.  Check out these posts:

Learn More

If you want to learn more about crowdfunding, read the following:

Next, get ethics advice – from independent ethics counsel with whom you form an attorney-client relationship or OSB General Counsel’s Office.  The General Counsel’s Office can help you identify applicable rules, point out relevant formal ethics opinions and other resource material, and give you a reaction to your ethics question – they are always a good place to start.

All Rights Reserved [2015] Beverly Michaelis

Postscript:

In addition to the above, practitioners should also consult with a tax lawyer or CPA. Money raised via crowdfunding will likely be considered taxable income. Check out these guidelines, available from PayPal. A word of caution: as noted here, failure to meet PayPal’s threshold for purposes of generating a 1099 doesn’t mean you aren’t obligated to report the income.

What Should I Do About Lost or Stolen Client Files?

imagesIs there any worse feeling than having your briefcase or laptop stolen?

While it can be hard to bounce back from such an experience, there are immediate steps you should take  if you discover that confidential client files have been compromised.

  1. File a police report.
  2. Don’t risk your personal safety. While Find my iPhone and MyLaptopGPS can track lost or stolen mobile devices and laptops, leave the police work to the police.  Do not confront the thief.
  3. If your laptop or mobile device is missing or stolen, notify your IT department.
  4. Change your network user name and password.
  5. Consider changing your user name and password for all accounts – anything you access via the Web.
  6. Check lost-and-found if applicable.  Believe it or not, laptops, devices, and briefcases get turned in by honest citizens.  Don’t give up until you try.
  7. Monitor Craigslist.  If you believe a thief has posted your property for sale, inform police.
  8. Contact your business insurance or liability carrier.  Property, valuable papers, or data breach coverage may cover the cost of replacing your laptop or reconstructing files. Beginning in 2013, the PLF added a Data Breach and Cyber Liability Endorsement to all excess coverage plans. The endorsement provides coverage for information security and privacy liability, privacy breach response services, regulatory defense and penalties, website media content liability, and crisis management and public relations services. Read more here.
  9. Inform your clients.  This is never easy, but clients must be informed if confidential information has been compromised. A sample notification letter is available on the PLF website.  Select Practice Management > Forms > Client Relations > “Notice to Clients re Theft of Computer Equipment.”
  10. Begin reconstructing your file.  Lawyers who are straightforward about an office break in or theft often find that clients are sympathetic, understanding, and more than willing to help.  With a bit of luck, you should be able to reconstruct most or all of your file from your backup or documents supplied by clients.
  11. Going forward, consider storing passwords or other sensitive information in an encrypted password manager.
  12. Backup, backup, backup!  Online backup services are a great way to automatically back up your laptop’s data.  Read more about backup protocols and available resources on the PLF website. Select Practice Management > Forms  > Technology > “How to Backup Your Computer.”
  13. If the theft occurred during an office break in, reassess building security. Talk to the building owner or property manager about alarms, surveillance, or other measures.
  14. Learn more by reading Protect Confidential Files – It Helps!
  15. Call your friendly Law Practice Management Advisor for help.

Establishing a Successful Home-Based Practice

Shingle Style CottageWhat does it take to establish a successful home-based practice?  Are there hidden pitfalls to drafting legal documents in your spare bedroom?

Learn whether you would be suited to working from home by considering these nine criteria:

Dedicated Office Space

Find a bedroom, den, or other area you can dedicate to full-time work.  Practicing at the kitchen table is less than ideal if it means assembling and disassembling your “office” each day.

Family and Confidentiality

If you live with others, take appropriate precautions to prevent access to client information (on computers and mobile devices as well as physical client papers).  The laptop you share with your spouse is not suitable for your law practice.

Boundaries

Failing to set personal boundaries can result in one of two extremes: nothing gets done or all you do is work.  Several years ago I met a home-based lawyer who reached out for help with procrastination and time management.  During the work week the lawyer let family chores and home responsibilities rule. To meet client deadlines, the lawyer worked all weekend.  As you might imagine, the lawyer’s spouse was not happy with this arrangement.  I have also witnessed the opposite. Workaholic tendencies are amplified tenfold when your commute is just down the hall….

Isolation

Working from home usually means working alone.  Make a concerted effort to get up and out.  Set concrete goals to attend CLEs, networking events, bar committee meetings, or go to lunch with colleagues.  Make these contacts a regular part of your schedule.

Privacy and Professionalism – Your Address and Telephone Counts

Arrange for a business mailbox at the post office, UPS Store, or through an executive suite and get a dedicated business phone.  This can be your cell, Google Voice [if you can still get a number], a VoIP provider, a virtual receptionist, or anything else you can figure out.  Using your home address or home telephone allows clients, opposing parties, and opposing counsel unfettered access to your personal life.

Meeting with Clients

This is best done outside your home.  One of the easiest solutions is an executive suite.  If this isn’t economically feasible, you may know a colleague with a spare office or conference room.

If you pursue one of these options, keep one eye on confidentiality and the other on conflicts.  I am not saying that borrowing someone’s conference room makes you a “firm member” for conflict purposes, but I am asking that you remain attentive to how such arrangements may evolve.

Whatever you do, don’t use coffee shops.  Revisit the comments above.  For help in selecting an executive suite, visit the PLF’s Web site.  Search for the form/practice aid “Virtual Law Practice.”

Home Office Permits

Projecting professionalism and protecting your privacy are the foremost reasons for not meeting clients at home, but if you need more, I am happy to oblige.

Most municipalities regulate home offices – which could, in the right circumstances – have a substantial impact on neighboring homes.  (Parking is the first issue that comes to mind.)

Do your research!  At a minimum, expect to complete an application and pay a fee.  You may also be required to notify neighbors, wait for the objection time to pass, and attend a neighborhood hearing on your permit application.

Premises Liability

The typical renter’s or homeowner’s policy covers risks associated with social invitees who slip and fall on your premises. It does not cover risks associated with business invitees who are injured on your premises [unless you purchase an appropriate rider or endorsement].  Of course, if you are uninsured you assume all the risk all the time.

Business License

If you live in a municipality that requires licensure, purchasing a business license is another step in addition to obtaining a home office permit.

[All Rights Reserved 2014 Beverly Michaelis]

 

The Nontraditional Law Practice

A nontraditional law practice can be anything a lawyer wants it to be:

  • Hybrid or alternative fee arrangements;
  • Unbundling;
  • Virtual law practice;
  • Home-based practice;
  • All the above; or
  • Something else entirely

Hybrid or Alternative Fee Agreements (AFAs)

As more clients push back against the hourly rate model, lawyers are looking for unconventional ways to price legal services.  One of the most popular?  The hybrid or alternative fee agreement (AFA).

Before you enthusiastically embrace this option, read this post and make sure your AFA satisfies the 5 “C’s” test:

  • Clarity
  • Completeness
  • Compliant
  • Common sense
  • Can’t be excessive

Hybrid or alternative fee agreements are often combined with other elements of a nontraditional practice.  Used correctly, they can be a huge asset.

Unbundling: Have it Your Way

With unbundling, clients pick and choose discrete services from a menu of available choices:

Providing limited legal services is not a new concept. Transactional lawyers have long served in the role of document reviewer or preparer. So how is unbundling different? It takes the idea one step further by employing a team approach in which the lawyer and client decide who will do what based on the legal services required by the client’s case. The client takes a much more active role in the matter and often assumes responsibility for pro se court filings and appearances.

Keep in mind that unbundling has its risks: Unbundling in the 21st Century: How to Reduce Malpractice Exposure While Meeting Client Needs and its ethical limitations.  See Unbundling Legal Services: Limiting the Scope of Representation and The Ethics of Unbundling:  How to Avoid the Land Mines of “Discrete Task Representation.”

Virtual Law Practice or Home Practice?

A virtual law practice or virtual law office (VLO) is a term of art referring to online delivery of legal services through a secure client portal.  If you are interested in creating a VLO, Stephanie Kimbro’s book Virtual Law Practice: How to Deliver Legal Services Online is a must.  [Available on the ABA Web store here. If you are not an ABA member, save money at checkout by using the Professional Liability Fund’s (PLF’s) discount code OSBPLF.]  Also see this post about click wrap or click through fee agreements.

VLOs aside, most lawyers who express an interest in practicing virtually mean they want to work from home – due to economic necessity, personal choice, or both.  In next week’s post, I’ll discuss the nine steps to establishing a successful home-based practice.

[All Rights Reserved 2014 Beverly Michaelis]